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THE  ORIGIN  AND  GROWTH  OF  THE  AMERICAN 
CONSTITUTION.   Octavo,  $4.00,  net.  Postage  extra. 
THE  ORIGIN   AND  GROWTH  OF   THE    ENGLISH 
CONSTITUTION.     In  two  volumes. 
Part  I.     The  Making  of  the  Constitution. 
Part  II.    The  After-Growth  of  the  Constitution. 
Each  part,  octavo,  $3.00,  net;    the  two  together, 
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HOUGHTON  MIFFLIN  COMPANY 
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THE  ORIGIN  AND  GROWTH 

OF  THE 

AMERICAN  CONSTITUTION 


THE  ORIGIN  AND  GROWTH 

OF  THE 

AMERICAN  CONSTITUTION 

Creative 


IN  WHICH  THE  DOCUMENTARY  EVIDENCE  AS  TO  THE  MAKING  OF 
THE   ENTIRELY   NEW   PLAN   OF   FEDERAL   GOVERNMENT   EM- 
BODIED IN  THE  EXISTING  CONSTITUTION  OF  THE  UNITED 
STATES  IS,  FOR  THE  FIRST  TIME,  SET  FORTH  AS  A 
COMPLETE  AND  CONSISTENT  WHOLE 


BY  HANNIS  TAYLOR 

HON.  LL.D.  OF  THE  UNIVERSITIES  OF  EDINBURGH  AND  DUBLIN 

Formerly  Minister  Plenipotentiary  of  the  United  States  to  Spain  ;   author  of  "  The 

Origin  and  Growth  of  the  English  Constitution";  "International  Public 

Law "  ;  "Jurisdiction  and  Procedure  of  the  Supreme  Court  of 

the  United  States"  ;  "The  Science  of  Jurisprudence" 

(presented  to  the  Institute  of  Prance, 

March  fj}  7909) 


"  Nee  temporis  unius,  nee  hominis  esse  constitutionem  Reipublicae." 

—  CICERO. 

"And  thus  it  comes  to  pass  that  Magna  Carta,  the  Acts  of  the  Long 
Parliament,  the  Declaration  of  Rights,  the  Declaration  of  Independence,  and 
the  Constitution  of  1787  constitute  the  record  of  an  evolution."  — BRANTLY. 

"  History  is  studied  from  documents.  Documents  are  the  traces  which  have 
been  left  by  the  thoughts  and  actions  of  men  of  former  times.  .  .  .  There  is  no 
substitute  for  documents  :  no  documents,  no  history."  —  Cn.-V.  LANGLOIS. 

"  Under  every  shell  there  was  an  animal,  and  behind  every  document 
there  was  a  man."  —  TAINH. 


BOSTON  AND  NEW  YORK 
HOUGHTON  MIFFLIN  COMPANY 

re£g  Cambri&0e 
1911 


COPYRIGHT,   1911,   BY  HANNIS  TAYLOR 
ALL   RIGHTS  RESERVED 

Published  June  iqn 


TO  MY  BEST  FRIEND 


PREFACE 


A  LONG  time  has  elapsed  since  the  author  undertook  to  draw  out  "The 
Origin  and  Growth  of  the  English  Constitution,"  within  the  limits  of  two 
octavo  volumes,  the  first  of  which  is  in  the  eighth  edition,  the  second  in  the 
fourth.  The  very  cordial  reception  given  to  that  work  throughout  the  Eng- 
lish-speaking world  and  beyond  it  naturally  suggested  a  sequel  to  be  entitled 
"The  Origin  and  Growth  of  the  American  Constitution,"  which  has  been 
completed  on  the  same  plan. 

After  thirty  years  of  effort  to  unfold  the  histories  of  the  two  closely 
related  constitutions  as  one  progressive  development,  the  author  was 
blessed  with  a  piece  of  good  fortune  which  has  more  than  requited  all 
the  labor  bestowed.  That  good  fortune  consisted  of  the  unearthing  of  a 
priceless  document,  very  near  the  surface,  which  has  cast  a  bright  light  into 
what  was  heretofore  a  very  dark  place.  It  explains  for  the  first  time  the 
real  history  of  the  invention  of  that  marvelous  system  of  government, 
partly  federal  and  partly  national,  given  to  the  world  by  the  Federal  Con- 
vention at  the  close  of  its  labors  at  Philadelphia  on  September  17,  1787. 
Beyond  that  point  the  influence  of  the  document  in  question  does  not 
extend,  —  except  in  one  important  particular  it  sheds  no  new  light  on  the 
after  history.  So  far  as  this  book  is  concerned,  it  is  a  mere  episode,  simply 
one  link  in  a  long  chain  of  causation  presented  herein  as  a  connected  whole. 
It  is,  however,  a  great  thing  to  know  for  certain  that  the  most  notable  of 
all  political  inventions  had  a  personal  inventor;  that  the  entirely  unique 
and  path-breaking  creation  embodied  in  the  American  Constitution  came 
into  being  in  a  perfectly  normal  way;  that  its  birth  was  neither  mythical 
nor  miraculous.  Beginning  upon  that  sane  basis  an  effort  has  been  made 
to  unfold  the  growth  of  that  Constitution  according  to  the  Historical 
Method,  which  regards  all  law,  public  and  private,  as  a  living  and  growing 
organism  that  changes  as  the  relations  of  society  change.  When  that 
method  is  applied  to  such  data  as  are  contained  in  printed  documents,  the 
growth  of  constitutions  may  be  worked  out  by  processes  almost  as  exact 
as  those  employed  in  physical  science.  As  Bishop  Stubbs  has  happily  ex- 
pressed it:  "  I  confess  that  to  me,  as  an  old  investigator,  a  good  deal  of  the 
accepted  theory  of  continuous  history,  in  this  region,  at  least,  of  history, 
seems  to  rest  on  arguments  as  sound,  within  its  own  material  and  area,  as 


viii  PREFACE 

those  on  which  Copernicus  and  Kepler  worked  out  their  astronomical  con- 
clusions." 

Never  in  the  constitutional  life  of  any  people  has  the  organic  develop- 
ment been  so  vast  and  rapid  as  that  which  has  taken  place  here  since  the 
existing  Federal  Constitution  went  into  effect.  During  the  very  short 
period  in  which  the  thirteen  scattered  communities  that  fringed  our 
Atlantic  seaboard  toward  the  close  of  the  seventeenth  century  have  been 
expanding  across  the  continent,  the  dissolving  views  of  change  have  fol- 
lowed each  other  like  the  pictures  in  a  panorama.1  In  expanding  with  that 
expansion,  in  adapting  itself  to  the  changed  relations  resulting  there- 
from, the  American  Constitution  has  developed  an  elasticity,  a  growing- 
power  entirely  beyond  the  cumbrous  process  of  amendment  its  terms 
provide.  When  the  Thirteenth,  Fourteenth,  and  Fifteenth  Amendments, 
involving  a  single  subject-matter,  are  considered,  as  they  should  be,  as 
a  single  transaction,  the  fact  remains  that  the  Constitution  of  the  United 
States  has  been  amended  in  a  formal  way  only  once  since  1804,  a  period  of 
one  hundred  and  seven  years.  And  yet  during  all  that  time  it  has  been 
passing  rapidly,  despite  its  rigid  and  dogmatic  form,  through  a  marvelous 
process  of  unparalleled  development,  chiefly  through  the  subtle  agency  of 
judge-made  law  ever  flowing  from  a  generous  fountain,  the  Supreme  Court 
of  the  United  States.2 

The  outcome  of  our  organic  development,  registered  as  it  is  in  writ- 
ten constitutions  and  in  the  vast  and  unwieldy  mass  of  judge-made 
law  through  which  they  have  been  interpreted,  is  an  indivisible  whole 
which  cannot  be  mastered  piecemeal,  —  it  cannot  be  clearly  expounded 
as  a  series  of  broken  and  disjointed  fragments.  To  the  mind  that  can- 
not deal  with  our  complex  body  of  law,  state  and  federal,  as  a  living 
and  growing  organism,  its  real  meaning  must  forever  remain  a  sealed 
book.  Difficult  as  the  problem  is,  the  task  is  somewhat  lightened  by  the 
fact  that  the  period  of  growth  to  be  mastered  embraces  less  than  a  cen- 
tury and  a  quarter,  a  period  whose  history  is  profusely  illustrated  by 

1  "Our  development  has  run  so  fast  and  so  a  vital  interpretation  of."    Woodrow  Wil- 

far  along  the  lines  sketched  in  the  earlier  day  son,  Address  before  American  Bar  Associa- 

of  constitutional  definition,  has  so  crossed  tion,  August  31,  1910. 
and  interlaced  those  lines,  has  piled  upon          2  An  inspection  of  the  annotated  Consti- 

them   such  novel  structures  of  trust  and  tution  in  Appendix  xx,  will   disclose  the 

combination,  has  elaborated  within  them  a  fact  that  it  has  been  construed  by  the  Su- 

life  so  manifold,  so  full  of   forces   which  preme  Court  in  nearly  fourteen  hundred 

transcend   the  boundaries  of  the  country  cases,  which,  if  printed  separately  in  the 

itself  and  fill  the  eyes  of  the  world,  that  a  official  form,  would  fill  about  fifteen  volumes 

new  nation   seems  to  have   been   created  of  the  Reports, 
which  the  old  formulas  do  not  fit  or  afford 


PREFACE  ix 

a  series  of  documents,  all  of  which  are  now  accessible.  There  is  no  longer 
a  place  for  the  withering  legends  of  supernaturalism,  or  for  myths  and 
traditions  that  defy  the  ordinary  rules  of  common  sense. 

M.  Len6tre — a  worthy  representative  of  that  school  which  has  de- 
throned romanticism  in  every  branch  of  French  literature  —  has  said : 
"History,  as  it  has  too  long  been  written,  is  similar  to  stage  scenery  when 
seen  from  the  body  of  a  theatre.  Everything  is  in  perfect  order,  every- 
thing is  logical  and  in  its  place,  everything  appears  to  be  solid  and  real  - 
provided  you  do  not  go  behind  the  scenes,  that  is  to  say,  provided  you  do 
not  study  the  facts  in  the  heaps  of  authentic  documents  stored  in  the 
record  office.  For  if  you  investigate,  you  will  discover  that  the  building 
has  only  a  front,  and  that  it  is  kept  upright  only  by  the  aid  of  cords  and 
pegs."  The  student  of  American  constitutional  history  has  no  reason  to 
fear  to  go  behind  the  scenes,  —  the  real  facts  as  attested  by  the  docu- 
ments are  quite  as  wonderful  as  anything  we  have  been  accustomed  to 
believe.  In  the  light  of  the  real  facts  as  attested  by  the  documents,  an 
attempt  has  been  made  herein  to  outline,  with  frequent  elaborations,  the 
origin  and  growth  of  the  American  Constitution  in  such  a  way  as  to 
enable  every  American  citizen,  layman  as  well  as  lawyer,  to  read  within 
narrow  limits  the  entire  history  of  the  wonderful  Constitution  under 
which  he  lives. 

Two  editions  of  the  epoch-making  document  to  which  reference  has 
been  made,  with  the  author's  commentary  upon  it,  have  been  published 
by  Congress,  in  an  unusual  form,  and  spread  broadcast.  In  that  regard 
the  author  is  indebted  to  his  good  friends,  the  Hon.  Thomas  H.  Carter,  the 
able  and  distinguished  United  States  Senator  from  Montana,  who  has 
given  special  study  to  the  subject;  and  to  the  Hon.  William  E.  Chandler, 
formerly  United  States  Senator  from  New  Hampshire,  and  Secretary  of 
the  Navy,  whose  brilliant  and  incisive  mind  is  ever  open  to  new  revela- 
tions. 

WASHINGTON,  D.  C., 
November,  1910. 


CONTENTS 

CHAPTER  I 

INTRODUCTORY 

Sources  of  English  and  American  Constitutions  only  recently  explored       ....        i 

Tocqueville,  1835;  his  description  of  the  "wholly  novel  theory";  Von  Hoist,  1875  .        2 

Ridicules  the  "Inspiration  Theory";  fails  to  examine  sources;  Bryce,  1888,  scope 
of  work  defined 3 

Failure  to  recognize  originality  of  new  federal  system 4 

No  federal  principle  derived  from  England;  fault  of  American  historical  scholarship; 
Federal  Convention  secret  as  masonic  lodge 5 

Seal  only  partially  broken  in  1818;  full  record  not  published  until  1841 ;  Story's  com- 
mentary, 1840;  only  a  colorless  statement 6 

George  Ticknor  Curtis,  1854;  Pelatiah  Webster's  call  for  a  "Continental  Conven- 
tion," 1781 7 

Curtis's  misty  platitude;  Bancroft,  1882;  reference  to  paper  of  February  16,  1783; 
failure  to  grasp  its  meaning 8 

His  so-called  "Connecticut  plan";  far  afield  as  to  Pinckney  plan;  study  of  American 
Constitution  just  begun 9 

First  Constitution  servile  copy  of  ancient  type  of  league;  drafted  by  Franklin  and 
Dickinson;  within  ten  years  great  invention  made;  absurd  theory  of  its  origin  .  10 

Bancroft's  rhapsody;  was  the  invention  made  after  the  Convention  met?  .     ...       n 

A  preposterous  assumption;  only  three  plans  taken  to  Convention;  plans  of  Madison 
and  Pinckney  instantly  presented;  plans  identical  in  all  vital  particulars  ...  12 

Were  they  drawn  from  a  common  source?  epoch-making  invention  of  February  16, 

1783 13 

Madison's  testimony;  imperfect  records  of  votes  and  debates 14 

Full  text  might  disclose  frequent  reference  to  Webster;  only  a  vacuum  to  be  filled  .  15 
"History  is  studied  from  documents";  work  of  the  master  builders;  need  no  fame 

that  belongs  to  another 16 

CHAPTER   II 

THE   GREAT   DISCOVERY   IN   MODERN   POLITICAL   SCIENCE 

Evolution  and  conscious  creation  contrasted;  why  the  states  should  be  first  studied; 

Taney's  definition  of  state  sovereignty 18 

Consolidated  Kingdom  of  England;  offspring  compared  with  parent 19 

Sources  of  American  federal  ideas;  requisition  system;  our  first  Federal  Constitution  20 

Our  second  Federal  Constitution;  "the  wholly  novel  theory  " 21 

Common  basis  of  three  prearranged  plans;  Madison  and  the  Virginia  plan  ...  22 

Pinckney's  "system";  Hamilton's  "full  plan  " 23 

From  what  common  source  were  the  plans  derived?  Pelatiah  Webster's  paper  of 

February  16,  1783 24 

How  commerce  compels  unity  of  law;  Annapolis  Convention 25 


xii  CONTENTS 

Address  prepared  by  Hamilton;  Federal  Convention  first  proposed  by  Webster  in 

1781 26 

His  essays  on  trade  and  finance 27 

His  contact  with  Congress;  his  fitness  to  deal  with  the  problem  of  problems  ...  28 
Inventor  of  federal  taxation;  supremacy  of  federal  law  a  corollary;  his  four  novel 

and  basic  principles 29 

His  effort  to  regulate  trade  between  the  states 30 

Foreshadows  Department  of  Commerce  and  Labor;  exigencies  of  the  times  demanded 

the  invention 31 

History  of  the  records  of  the  Federal  Convention;  seal  of  secrecy  partially  broken  in 

1818 32 

Pinckney's  plan  not  in  the  record;  why  it  was  not  copied 33 

Pinckney  defended  by  Jameson  and  Nott ;  his  plan  submitted  to  Committee  of  Detail  34 

New  testimony  from  Wilson  manuscripts 35 

Pinckney  presented  only  real  plan;  its  influence  on  the  Constitution;  unofficial 

records 36 

The  Madison  Papers,  1841;  entire  record  not  published  for  fifty-four  years;  Ban- 
croft's so-called  Connecticut  plan 37 

Conditions  at  the  time  of  Webster's  discovery 38 

No  trace  of  any  other  plan  at  that  time;  Madison's  first  "sketch  on  paper,"  March 

and  April,  1787 39 

Webster's  paper  spread  broadcast,  February  16,  1783;  Hamilton  and  Madison  then 

in  Philadelphia;  effects  of  Webster's  initiative 40 

Hamilton's  motion  of  April  I,  1783;  congressional  action,  April  18  and  28;  motive 

of  Morris's  resignation;  difference  between  architect  and  master  builders  ...  41 

No  draftsman  claimed  to  be  inventor 42 

An  invention  implies  a  personal  inventor;  work  of  the  master  builders;  Randolph; 

Madison;  Mason;  Wythe 43 

Franklin;  Wilson;  Morrises;  King;  Gerry;  Hamilton;  Pinckneys;  Rutledge;  Butler  .  44 
Ellsworth;  Sherman;  Paterson;  Martin,  Da  vie,  Spaight,  Williamson;  need  no  fame 

not  their  own 45 

Personal  conduct  of  Pelatiah  Webster;  his  two  bugle  calls  of  1781  and  1783;  record 

of  Convention  a  sealed  book  to  him 46 

Webster  first  to  defend  the  new  Constitution;  refers  expressly  to  his  original  paper  47 

His  reply  to  "Brutus  " 48 

Weighty  reflections;  canonization  of  the  new  Constitution 49 

Webster's  republication  and  appeal  to  posterity 50 

CHAPTER  III 

THE   EVOLUTION    OF   THE   TYPICAL  AMERICAN   STATE 

The  two  Anglo-Saxon  migrations;  unbroken  political  development;  growth  of  the 

English  state  in  Britain 51 

Substantial  identity  of  two  great  settlements;  Darwin's  statement;  two  migrations 

contrasted 52 

The  starting-point;  civitas  of  Caesar  and  Tacitus 53 

Pagus,  gau,  or  shire;  four  classes;  the  village  community 54 

Boston;  the  hundred  and  the  hundred  court;  the  state  assembly 55 

Military  organization;  transfer  of  institutions;  period  of  Teutonic  conquest    ...  56 

Christianity  and  the  customary  laws;  the  rice  or  early  kingdom 57 

Origin  of  the  modern  shire;  process  of  aggregation 58 


CONTENTS  xiii 

Threefold  division  broken  down  after  two  centuries  of  struggles;  triumph  of  Wessex 

in  825;  Eadgar  the  Peaceful,  958;  work  of  consolidation 59 

Ancient  state  becomes  modern  shire;  state  assembly  survives  as  shire-moot;  germs 

of  jury  system  and  representative  system 60 

Modern  courts  of  assize;  political  substructure  of  the  American  state 61 

Old-English  central  organization;  elective  kingship 62 

Provincial  royalty  died  out;  constitution  of  the  Witenagemot;  England  and  Achaia       63 
Lack  of  cohesion  between  central  and  local  powers;  feudal  tendency  to  disruption 

checked  by  Godwine;  Norman  duchy  and  its  dukes 64 

An  assembly  of  magnates 65 

Fall  of  Harold  and  triumph  of  William;  William  a  national  king  as  well  as  feudal 

conqueror;  law  of  the  land  and  ancient  assemblies  preserved 66 

Feudalism  as  a  system  of  tenure;  William  the  Red;  Flambard  and  the  growth  of 

feudal  law;  Henry's  coronation  oath 67 

The  Magnum  Concilium;  the  Curia;  the  Justiciar;  Stephen  and  anarchy;  a  project 

of  reform 68 

Origin  of  administrative  machinery;  the  period  of  fusion;  royal  and  popular  law      .       69 
Henry  II  and  the  reign  of  law;  Constitutions  of  Clarendon,  1164;  practice  of  sum- 
mons; growth  of  judicial  business 70 

Beginning  of  King's  Bench;  grand  and  trial  juries;  Assize  of  Arms,  1 181    ....       71 
Scutage,  1159;  taxation  of  personal  property,  1188;  taxation  and  representation; 

Richard  I  and  taxation 72 

Rise  of  the  three  estates;  John  as  a  statesman 73 

Loss  of  Normandy,  1204;  council  at  St.  Alban's,  August  4,  1213;  council  at  St.  Paul's, 

August  25,  1213;  meeting  at  St.  Edmund's,  November,  1214 74 

Great  Charter  signed,  June  15,  1215;  chapter  39,  "due  process  of  law";  trial  by  jury 

not  guaranteed 75 

Broad  construction;  chapter  39  embodied  in  state  constitutions 76 

Chapter  39  embodied  in  Fifth  Amendment,  and  in  the  Fourteenth 77 

A  manifest  historical  error;  results  of  the  Revolutions  of  1640  and  1688     ....       78 

Exemption  from  self-incrimination;  Blackstone  not  Coke  the  guide 79 

Modern  English  system  embodied  in  state  constitutions;  Justice  Matthews's  correct 

view 80 

Justice  Gray's  view 81 

Justice  Moody 's  view;  origin  of  representative  government;  writs  of  1213  .     .     .     .       82 
Writs  of  1254;  writs  of  1265;   Great  Parliament  of  1295;  transition  from  feudal 

council  to  council  of  estates;  confirmatio  cartarum,  November  5,  1297      ....       83 
Two  stages  of  growth;  Parliament  divided  into  two  houses;  Sheldonian  compact  of 

1664 84 

Accession  of  House  of  Lancaster;  accession  of  House  of  York;  origin  of  the  great 

courts  of  law  and  equity 85 

Equitable  jurisdiction  of  the  Chancellor;  origin  of  courts  of  assize;  powers  retained 

by  the  King  in  Council 86 

Ordinances;  York  and  Tudor  monarchy;  the  Star  Chamber 87 

From  Edward  IV  to  Wolsey;  Cromwell's  new  policy;  collapse  of  representative 

government  on  the  Continent 88 

English  Renaissance;  real  meaning  of  the  term;  reign  of  monarchy  brought  with  it 

peace;  era  of  discovery  and  conquest 89 

Stuarts  and  Revolution  of  1640;  conflict  between  conciliar  and  parliamentary  sys- 
tems; two  famous  trading  charters 90 

English  title  to  new  world;  rule  regulating  acquisition;  James's  charter  of  April  10, 

1606;  London  Company;  Plymouth  Company 91 


xiv  CONTENTS 

English  law  the  basis;  London  Company's  separate  charter  of  1609;  domains  of  the 
five  southern  colonies 92 

Domains  of  the  four  northern  colonies;  domains  of  the  four  middle  colonies;  colonies 
mere  corporations  created  by  the  Crown 93 

Creation  and  dissolution  of  corporations;  soil  granted  as  terra  regis;  revocation  of 
charter  of  London  Company,  1624;  and  of  Massachusetts,  1684 94 

The  omnipotent  Parliament;  the  royal  colonies  —  Virginia;  ordaining  power  of  the 
King  in  Council 95 

First  American  representative  assembly,  1619;  the  colony  as  a  reproduction  of  the 
parent  state 96 

The  charter  colonies  —  Massachusetts;  her  charter  a  recognition  of  preexisting  con- 
ditions   97 

Charters  of  Rhode  Island  and  Connecticut  retained;  the  proprietary  system  — 
Maryland;  a  county  palatine 98 

Primary  plan  supplanted  by  representative  system;  Carolina,  and  Locke's  Funda- 
mental Constitutions;  England's  strength  as  a  colonizing  nation 99 

Political  aggregation  in  America;  county  and  township  as  agents  of  local  government     100 

In  the  northern  colonies  the  township,  in  the  southern  the  county,  the  active  agent; 
composite  system  in  middle  colonies;  the  township  in  different  aspects;  the  parish 
and  its  vestry 101 

Townships  in  New  England;  manors  in  Maryland IO2 

Manors  in  New  York;  Virginia  parishes;  America's  first  contribution  to  political 
science 103 

Invalidity  of  colonial  statutes;  state  constitutions  of  1776;  earliest  cases  declaring 
state  statutes  void 104 

Constitutional  limitations  on  legislative  power;  invention  originated  with  the  states; 
American  theory  of  colonial  rights 105 

The  Crown  regarded  as  the  only  tie  that  bound  the  colonies  to  England;  English 
theory  of  colonial  rights 106 

Out  of  the  conflict  grew  the  war  of  the  Revolution 107 

CHAPTER  IV 

FEDERALISM  AS  A   SYSTEM   OF  GOVERNMENT 

Effects  of  geography  on  federation;  Britain  and  America  contrasted;  a  federal  union 
defined 108 

An  ideal  federal  government;  four  notable  approaches;  confederated  states;  com- 
posite states;  the  Greek  city-commonwealth 109 

Aristotle's  "Constitutions";  the  Greece  of  Polybios;  Achaian  League no 

Federal  taxes  and  requisition  system;  no  conscious  influence  on  American  federalism; 
founders  only  familiar  with  Teutonic  leagues Ill 

All  operated  on  states  or  cities,  not  on  individuals;  modern  state  as  the  nation;  Teu- 
tonic tribes  gathered  into  nations 112 

Tribal  sovereignty;  territorial  sovereignty  the  outcome  of  "the  process  of  feudaliza- 
tion" 113 

Form  assumed  by  the  monarchy  in  France  reproduced ;  how  federal  unions  are  classi- 
fied; Staatenbund 114 

Swiss  Confederation;  Germanic  Confederation 115 

United  Provinces  of  the  Netherlands;  States-General  and  its  powers;  criticism  of 
Grotius;  of  the  Abbe  Mably 116 

Stadtholder  and  his  powers;  "Observations"  of  Sir  William  Temple      .     .  •   .     .    .     117 


CONTENTS ''  xv 

CHAPTER  V 

AMERICAN  CONFEDERATIONS  FROM    1643  TO   1777 

United  Colonies  of  New  England 119 

Albany  convention  of  1684;  Albany  meeting  of  1694;  Penn's  plan  of  1697;  plan  of 
1721;  Clinton's  proposals  of  1744  and  1752 120 

Albany  meeting  of  1754;  Madison's  statement  of  its  purpose;  Franklin's  statement     121 

Plan  of  Daniel  Coxe 122 

Nothing  new  proposed ;  effects  of  the  growth  of  population  on  federation;  New  France; 
the  struggle  for  expansion 123 

Effects  of  French  and  Indian  War  upon  the  cause  of  union;  Stamp  Act  Congress, 
October  7,  1765 124 

First  Continental  Congress,  September,  1774;  drastic  English  legislation    ....     125 

Action  of  Virginia  burgesses;  leaders  of  the  Congress 126 

Declaration  by  Boston  and  other  towns,  September  9;  no  talk  of  revolution  at  outset; 
Galloway's  plan  of  confederation 127 

Declaration  of  Rights  and  Liberties,  October  14;  "The  Association,"  October  20     .     128 

Address  to  people  of  Great  Britain,  October  21 ;  petition  to  King,  October  26;  another 
Congress  in  following  May;  Second  Continental  Congress,  May,  1775  .  .  .  .  129 

Articles  of  Confederation  drafted  by  Franklin,  July,  1775;  second  draft  by  Dickinson, 
July,  1776;  debate  begun  July  22 130 

Fragment  of  debate  preserved  by  Jefferson;  original  draft  of  Article  xi;  comments 
by  Chase;  by  John  Adams 131 

Comments  by  Wilson;  by  Witherspoon;  Article  xvn;  comments  by  Chase;  by 
Franklin 132 

Comments  by  Witherspoon;  by  Rush;  by  Hopkins;  Maryland's  influence  upon  the 
land  cessions  to  United  States 133 

"Instructions"  to  her  delegates;  Virginia,  New  York,  Massachusetts,  and  Connecti- 
cut yield 134 

Northwest  territory  vested  in  new  nationality;  sterility  of  designers  of  first  Constitu- 
tion; the  principle  of  inter-citizenship 135 

First  Constitution  devoid  of  taxing  power;  purse  and  sword  retained  by  the  states; 
Congress  possessed  hardly  more  than  advisory  power 136 

Hamilton's  graphic  picture 137 

CHAPTER  VI 
PELATIAH  WEBSTER'S  INVENTION  OF  FEBRUARY  16,  1783 

First  Federal  Constitution  failed  from  a  lack  of  taxing  power;  no  real  reform  ever  pro- 
posed prior  to  1783 139 

Mr.  Eland's  summing-up,  January  27,  1783;  one  hundred  and  forty  years  of  sterility; 
servile  copying;  Webster  proposed  to  abolish  ancient  system  as  early  as  1781  .  .  140 

His  exposure  of  the  weaknesses  of  the  first  Constitution 141 

"Absurd  doctrine  of  rotation";  "ten  times  easier  to  form  a  new  constitution  than  to 
mend  the  old  one" 142 

Plan  of  February  16,  1783,  published  at  the  very  doors  of  Congress;  Webster's  path- 
breaking  proposal 143 

"Supreme  authority"  must  not  depend  on  "thirteen  popular  assemblies";  must 
levy  duties  on  imports 144 


xvi  CONTENTS 

Prejudice  in  favor  of  exclusive  state  taxation  deep- rooted;  Webster's  defense  of  his 

new  theory  of  federal  taxation 145 

A  completely  organized  government  a  necessity;  division  of  a  federal  state  into  three 

departments;  Montesquieu  and  single  states 146 

Definition  in  Virginia's  Bill  of  Rights;  first  Constitution  vested  all  power  in  a  one- 
chamber  assembly;  a  bicameral  federal  legislature;  Jefferson's  indorsement      .     .     ^47 
A  President  surrounded  by  a  cabinet  council;  ministers  to  sit  in  Congress  without  the 

right  to  vote;  the  Swiss  Executive 148 

Ministers  do  not  resign  after  adverse  vote;  American  Speaker  armed  with  abnormal 

powers;  right  of  cabinet  to  initiate  legislation 149 

Webster  first  proposed  a  two-chamber  Federal  Congress;  his  reasons  for  the  unpre- 
cedented change 150 

How  the  delegates  were  to  be  chosen;  old  one-term  rule  denounced;  Congress  to  be 

armed  with  all  necessary  powers 151 

Federal  judiciary  outlined 152 

A  Supreme  Court  with  jurisdiction  original  and  appellate;  inferior  federal  courts  of 

law  and  equity .     .     153 

Webster  defined  supremacy  of  federal  law;  remedy  when  resisted  by  force  in  any 

state;  reserved  rights  of  states  carefully  guarded 154 

Webster's  statement  far  more  ample  than  Tenth  Amendment;  great  invention  syn- 
chronizes with  failure  of  quota  system 155 

Lack  of  power  in  Congress  to  levy  a  tax  on  imports;  Rhode  Island's  veto  ....     156 

Death  knell  of  Confederation 157 

A  benefactor  in  disguise;  Continental  Congress  in  1783;  its  decadence 158 

Only  twenty-seven  delegates  from  eleven  states;  its  wanderings 159 

Madison,  Hamilton,  and  Pinckney 160 

Webster  and  Hamilton  as  financiers  and  economists;  Professor  Sumner  describes  their 

relations;  how  Webster  forced  the  calling  of  the  Federal  Convention  of  1787  .     .     161 
Charles  Pinckney  comes  upon  the  scene;  Madison,  Hamilton,  and  Pinckney  marched 
behind  Webster 162 

CHAPTER  VII 

THE   FEDERAL   CONVENTION    OF    1787   AND   ITS   WORK 

V^^Attempts  to  solve  a  mighty  problem  with  main  factor  omitted ;  a  miracle  of  finance ; 

the  financier  of  the  Revolution 164 

Hamilton's  move  for  Federal  Convention  stimulated  by  Webster;  Congress  declined 
to  take  the  lead;  joint  commissioners  of  Virginia  and  Maryland,  1785     ....     165 

State  tariffs  of  1785 166 

f    Annapolis  Convention  of  1786;  Federal  Convention  of  1787;  its  meeting  forced  by 

/events 167 
Imperious  necessities  of  commerce  and  finance;  the  jealous  spirit  of  local  self-interest     1 68 

Josiah  Tucker's  statement;  isolation  surrounding  Webster's  invention 169 

Adam  Smith  and  his  work;  alternatives  presented  to  Convention;  summary  .     .     .     170 

Convention  worked  only  eighty-six  days 171 

*.  Absurdity  of  inspiration  theory;  the  four  new  principles;  relation  between  architect 

and  master  builders 172 

Convention  did  not  meet  for  business  on  May  14;  Washington's  inspiring  words; 

deputies  present  on  May  25 173 

Committee  to  prepare  standing  rules;  Virginia  plan  presented  May  29;  Madison's 
first  sketch  on  paper 174 


CONTENTS  xvii 

Randolph's  statement;  only  Pinckney  and  Hamilton  drafted  finished  plans    .     .     .     175 
Pinckney's  plan  or  "system "  presented  May  29;  copy  of  lost  Pinckney  plan  furnished 

in  1818 176 

Gravamen  of  Madison's  criticism;  Jameson  and  Nott's  refutation;  Pinckney's  the 

version  par  excellence;  Madison's  ideas  of  reform 177 

Provincial  spirit  in  Virginia;  the  great  invention  not  gradually  evolved  in  Conven- 
tion; its  work  "cut  and  dried"  beforehand 178 

Discussion  in  Committee  of  the  Whole  began  May  30;  division  of  the  federal  head; 

division  of  Congress  into  two  houses 179 

Suffrage  and  representation;  scope  of  legislative  power;  use  of  force  against  a  state; 

organization  of  the  executive  power 180 

To  consist  of  a  single  person;  powers  of  the  Executive 181 

To  be  chosen  by  electors;  the  veto  power;  organization  of  judiciary 182 

One  supreme  with  inferior  tribunals;  tenure  and  selection  of  judges 183 

Organization  of  the  legislature;  combination  of  state  and  national  governments      .  184 

States,  as  such,  recognized;  suffrage  in  the  popular  branch;  larger  states  prevail      .  185 
Senators  to  be  apportioned  according  to  population;  new  plan  of  federal  government 

reported  June  13  in  the  form  in  which  Madison  and  Pinckney  had  restated  it      .  186 

Text  of  resolutions 187 

"The  scheme  is  itself  totally  novel,"  declared  Lansing 189 

Injustice  to  the  smaller  states;  they  form  a  coalition;  New  Jersey  plan  their  counter- 
blast       190 

How  it  was  trampled  upon;  the  Hamilton  plan 191 

Race- traits  of  the  soldier-statesman;  special  aptitude  for  economics  and  finance; 

followed  Webster's  initiative 192 

His  "full  plan";  more  voluminous  than  that  of  Pinckney;  why  it  offended;  only  two 

plans  considered 193 

Nineteen  resolutions  considered  seriatim;  the  legislature  to  consist  of  two  branches  194 
Claim  of  large  states  stated  by  Wilson;  that  of  small  states  by  Ellsworth  .     .     .     .  195 
A  crisis  reached  on  June  28;  Madison  adds  fuel  to  the  flame;  the  Connecticut  com- 
promise       196 

Davie  of  North  Carolina  supports  it , 197 

Compromise  reported  on  July  5;  concession  as  to  representation  of  slaves  .     .     .     .  198 
Direct  taxation  and  representation;  North  Carolina  gives  victory  to  smaller  states; 

twenty- three  resolutions  referred  to  Committee  of  Detail 199 

John  Rutledge,  chairman;  a  great  orator 200 

Ellsworth  as  arbitrator;  importance  of  Pinckney's  "system";  Randolph's  tentative 

draft 201 

Professor  Jameson's  discovery;  final  draft  by  Wilson 202 

Judge  Nott's  comments;  what  Pinckney's  vindication  teaches;  report  of  Committee 

of  Detail,  August  6 203 

Special  committees;  choice  of  an  executive;  a  single  person  to  be  chosen    ....  204 
Electoral  colleges  defined;  Vice-President  to  be  President  of  Senate;  Committee  on 

Style  reported  September  12 205 

The  last  day,  September  17;  Franklin's  appeal;  Washington  addresses  Convention 

for  first  time ...  206 

Result  reported  to  Congress,  September  20;  opposition  to  the  commerce  clause  .     .  207*^ 
Negotiations  between  Jay  and  Gardoqui,  1785;  Delaware  first  to  ratify,  December  7, 

1787;  Pennsylvania  and  New  Jersey,  same  month;  Georgia,  January,  1788      .     .  208 
Connecticut  same  month;  the  struggle  in  Massachusetts;  warning  to  Samuel  Adams; 

Fisher  Ames 209 

Hancock;  battle  won  February  6;  "The  Federalist,"  1788 210 


xviii  CONTENTS 

Maryland  ratified,  April  26;  South  Carolina,  May  23;  Pinckney  and  Lowndes  in 

state  legislature 211 

Convention  organized,  May  13;  New  Hampshire  ratified,  June  21 212 

Virginia,  June  25;  opposition  weakened  by  act  of  South  Carolina;  Patrick  Henry; 

George  Mason 213 

Pendleton;  Randolph;  Madison;  federal  judiciary  assailed;  Marshall 214 

Appeal  to  Virginia  debtors;  Henry's  defiant  outcry 215 

Unconditional  ratification;  New  York  ratified,  July  26;  the  "Federal  Farmer"  .     .  216 
Convention  met  at  Poughkeepsie,  June  17;  debate  opened  by  Livingston;  Hamilton; 

Bill  of  Rights  offered 217 

Madison's  letter;  Hamilton's  triumph;  North  Carolina  ratified,  November  21,  1789  218 

Rhode  Island,  May  29,  1790;  summary 219 

Congress  notified  of  action  of  nine  states,  July  2,  1788;  choice  of  electors  ordered, 
September  13 ;  votes  for  President  and  Vice-President  counted,  April  6;  Washington 

became  seat  of  government,  1800 220 

CHAPTER  VIII 

THE  FIRST  TWELVE  ARTICLES   OF  AMENDMENT 

New  Constitution  not  prefaced  by  a  bill  of  rights;  lack  supplied  by  a  series  of  amend- 
ments proposed  by  the  states;  varying  interpretation  of  Magna  Carta    ....  222 
Supplemented  by  modern  principles;  Randolph  and  Gerry  demand  amendments     .  223 

Fears  of  Pelatiah  Webster;  Lee's  demand  for  a  bill  of  rights 224 

Subject  of  amendments  in  state  conventions;  the  Massachusetts  precedent;  com- 
mended by  Madison;  composition  of  First  Congress 225 

Organization  of  the  judiciary;  Supreme  Court;  District  Courts 226 

Circuit  Courts;  Madison  leader  of  the  House;  administrative  machinery    ....  227 
Twelve  amendments  offered  June  8,  1789;  a  Declaration  of  Rights;  ten  amendments 

adopted 228 

Preamble;  proposed  to  legislatures,  September  25 229 

Religious  liberty;  Mormon  Church;  freedom  of  speech  and  the  press 230 

Jackson's  assault  trampled  on  by  Webster 231 

Right  of  petition;  right  to  keep  and  bear  arms;  object  of  Assize  of  Arms    ....  232 
Presser  v.  Illinois;  billeting  of  soldiers  prohibited;  Stat.  31  Car.  II,  c.  i;  general  war- 
rants prohibited 233 

No.  45  of  North  Briton;  Mansfield's  judgment 234 

Guarantees  of  due  process  of  law;  perpetuation  of  the  grand  jury  in  federal  courts; 

but  not  in  state  courts 235 

Exemption  from  self-incrimination;  "due  process"  traced  to  Magna  Carta     .     .     .  236 

A  grave  historical  mistake;  Barron  v.  Baltimore 237 

Jury  trials  in  criminal  cases  safeguarded;  trials  must  be  speedy  and  public;  English 

criminal  trials  prior  to  civil  war 238 

After  accession  of  House  of  Stuart 239 

Right  of  counsel  to  confer  with  prisoner;  enumeration  of  rights  of  accused  in  Sixth 

Amendment;  rule  of  interpretation;  jury  trials  in  civil  cases  guaranteed      .     .     .  240 

Hamilton  in  "  The  Federalist ";  right  to  have  cause  submitted 241 

Opinion  of  judge  as  to  weight  of  evidence;  limit  to  hostile  comments;  excessive  bail 

and  fines  prohibited 242 

Article  10  of  Bill  of  Rights  reproduced;  electrocution  not  prohibited;  modern  English 

Constitution  as  source 243 

An  act  of  over-caution;  contention  that  bill  of  rights  was  unnecessary;  maxim  of 

expressio  unius 244 


CONTENTS  xix 

Reserved  powers  of  the  states;  Marshall  on  implied  powers 245 

States  protected  against  certain  suits;  Chisholm  v.  Georgia  forced  Article  xi;  Hol- 

lingsworth  v.  Virginia 246 

Suit  by  a  foreign  sovereign;  electoral  system  amended 247 

Menacing,  conditions  arising  out  of  election  of  1800;  election  by  the  House     .     .     .  248 
Right  to  count  electoral  votes;  precedents  of  1793,  1797,  and  1800;  Electoral  Com- 
mission Act,  January  29,  1877 249 

Electoral  Count  Act,  February  3,  1887;  survivors  at  end  of  constructive  period  .     .  250 

Hamilton;  trial  of  Burr  for  treason;  constructive  treason  abolished 251 

Oneness  of  English  and  American  constitutional  law 252 

CHAPTER  IX 

AFRICAN  SLAVERY  AND   ITS  CONSEQUENCES 

Slavery  in  all  the  colonies  prior  to  the  Revolution;  Mansfield  in  Sommersett's  case; 

case  of  Dred  Scott 253 

Slaves  landed  by  Dutch  at  Jamestown,  1619;  cotton-gin,  1793;  three  compromises  of 

the  Constitution 254 

Ordinance  of  1787;  title  to  Northwest  Territory 255 

All  territorial  lands  declared  national  domain,  1780;  Rufus  Putnam;  temporary 

government  reported  by  Jefferson,  1784 256 

Jefferson's  proposal  revived  by  King  in  1785 ;  report  by  new  committee,  July  1 1 ,  1787  257 

Bancroft's  statement;  reference  in  fifth  article  to  consent  of  Virginia 258 

Tucker's  summing-up;  text  of  the  famous  Ordinance  of  July  13,  1787 259 

Colonists  and  constitution  of  mother  state 265 

Marshall  explains  the  relation;  Insular  Tariff  cases,  1900;  certain  constitutional 

provisions  applicable  to  all  territory 266 

Restricted  right  of  suffrage;  right  of  a  state  to  regulate  it;  death  of  the  old  Congress  267 

Passed  its  last  act  October  10,  1788;  the  Ohio  Company 268 

Webster's  tribute;  Madison's  criticism;  Virginia's  noble  part 269 

The  Northwest  dedicated  by  the  South  to  freedom;  Jefferson's  plan  for  the  extinction 

of  slavery 270 

It  failed  because  of  its  largeness;  the  irrepressible  conflict;  a  slave  state  and  a  free 

admitted  by  turns;  introduction  of  foreign  territory 271 

The  first  census,  1790;  freemen  and  slaves;  "persons  held  to  service  or  labor"; 

gradual  abolition  of  slavery  in  the  North;  admission  of  Vermont,  1791  ..  .  .  272 
Precedent  for  admission  of  Texas;  Kentucky  admitted  in  1792;  Tennessee,  1796; 

Ohio,  1803 273 

Louisiana  Purchase,  1803;  Jefferson's  mental  difficulty;  idea  of  nationality  promoted; 

Article  in  of  the  Treaty  of  1803 274 

Province  of  Louisiana  divided,  1804;  territory  of  Missouri  organized  June  4,  1812  275 
Civil  code  based  on  Code  Napoleon;  positive  law  defined;  Orleans  Territory  admitted 

as  a  state,  1812 276 

Colonial  scheme  of  1787  a  model;  attempt  to  legalize  slavery  in  Indiana  Territory; 

admitted  as  a  free  state,  1816 277 

Mississippi  admitted  in  1817;  Illinois  admitted  in  1818;  Alabama  admitted  in  1819  278 
Maine  admitted  in  1820;  the  Missouri  Compromise,  1820;  Jefferson's  forebodings; 

battle  for  slavery  to  be  fought  beyond  the  Mississippi 279 

Suddenness  of  the  conflict;  terms  of  the  Missouri  Compromise 280 

Missouri  admitted  in  1821;  extreme  view  of  state  sovereignty;  Federalists  and 

Republicans 281 


XX  CONTENTS 

Hamilton  and  Jefferson  as  leaders;  "era  of  good  feeling,"  1820 282 

Democrats  and  Whigs,  1828;  Arkansas  admitted  in  1836;  Michigan  in  1837;  Florida 

and  Texas  the  last  slave  states  admitted,  1845 283 

Possession  taken  of  West  Florida,  1810;  East  Florida  and  Treaty  of  1819;  Florida 

admitted  in  1845;  Texas  ceded  by  France  to  Spain,  1763 284 

"Texas  and  Coahuila"  one  state;  Texas  a  new  state  subject  to  three  conditions; 

annexation  without  treaty 285 

Population  of  the  Southwest  prior  to  1830;  Iowa  admitted  in  1846;  Wisconsin  in 

1848;  Mexican  War  a  victory  for  slavery;  its  soil  had  been  made  free  ....  286 
Wilmot  Proviso,  1846;  Free-Soil  party;  California  and  the  Compromise  of  1850; 

triumph  of  Pierce  and  ruin  of  the  Whigs 287 

South  at  a  loss  for  slave  territory;  failure  to  buy  Cuba;  Kansas-Nebraska  Bill,  1854; 

Douglas  and  squatter  sovereignty 288 

Abraham  Lincoln;  Lincoln-Douglas  debates  of  1858;  Minnesota  admitted  in  1858; 

Oregon  admitted  in  1859 289 

Summary;  eleven  free  and  nine  slave  states  in  1859;  the  Dred  Scott  case,  1857;  was 

the  act  embodied  in  the  Missouri  Compromise  constitutional? 290 

An  attempt  to  apply  the  doctrine  of  Sommersett's  case;  plea  to  the  jurisdiction  — 

was  Scott  a  citizen? 291 

Constitutionality  of  Compromise  essence  of  issue;  fugitive-slave  clause;  consistency 

of  Garrison 292 

Thirteenth  Amendment;  disruptive  force  of  slavery  question 293 

Lincoln  leader  of  Republican  party;  his  contention  corner-stone  of  new  national  life; 

discomfiture  of  Douglas 294 

Kansas  admitted  in  1861 295 

CHAPTER  X 

SIXTY- ONE  YEARS   OF  CONSTITUTIONAL  GROWTH   (1804-65) 

Savigny  —  law  as  a  part  of  national  life 296 

"Constitutions  are  not  made,  they  grow";  English  Constitution  partially  embodied 
in  documents;  a  long  process  of  change  and  of  growth;  state  constitutions  outcome 

of  evolution 297 

How  we  have  advanced  from  one  stage  of  growth  to  another;  omnipotent  Parlia- 
ment and  Supreme  Court 298 

Congress  subject  to  its  final  revising  power;  struggle  between  national  and  provincial 

spirit;  dim  sense  of  union  at  the  outset 299 

Presence  of  slavery;  influence  of  intercommunication 300 

New  conception  of  nationality;  narrowing  circle  of  individual  rights;  the  age  of  col- 
lectivism     301 

Sixty-one  years  without  a  constitutional  amendment;  opposition  to  new  national 

system;  a  southern  confederacy  to  be  based  on  slavery 302 

Washington's  triumph;  Hamilton's  excise  tax;  whiskey  insurrection  of  1794   .     .     .  303 
Neutrality  proclamation  of  1793;  John  Adams  and  French  Directory;  Alien  and 

Sedition  Laws,  1798 304 

Attempt  to  restrain  freedom  of  discussion 305 

Kentucky  and  Virginia  Resolutions,  1798;  additional  Kentucky  Resolution  of  1799  306 

Virginia  Resolutions  fathered  by  Madison 307 

Jefferson  the  real  author  of  both  sets;  Rousseau  and  the  Contrat  Social      ....  308 

Jefferson's  deadly  heresy;  his  failure  to  appreciate  the  judicial  power 309 

Nullification  and  secession;  a  constitution  not  "a  compact";  Marshall's  doctrine    .  310 


CONTENTS  xxi 

Chase's  doctrine;  Jefferson's  evasion  of  moral  responsibility 311 

Hartford  Convention,  1814;  New  England  opposition  to  "restrictive  system"; 

Federalist  opposition  to  War  of  1812 312 

Massachusetts  storm  centre;  convention  at  Hartford,  December  15, 1814.  .  .  .  313 

Scope  of  its  work;  the  voice  of  Jefferson;  changes  in  Constitution  recommended  .  314 

How  the  conspiracy  was  annihilated;  Daniel  Webster's  comment 315 

South  Carolina  and  nullification;  tariff  a  political  issue  after  1824;  Calhoun  .  .  .  316 
Nullification  defined  by  Webster;  Hayne's  defense  based  on  Virginia  Resolutions; 

Calhoun's  "  too  subtle "  restatement 317 

Banquet  of  April  13,  1830,  Jackson  and  Calhoun;  Benton's  comment 318 

Calhoun's  dissertation  of  July,  1831;  nullification  ordinance  of  November,  1832  .  319 
Nullification  Proclamation  of  December  n;  Act  of  March  2,  1833;  compromise 

tariff  of  March  2,  1833 320 

The  doctrine  of  secession;  nullification  abandoned;  a  constitution  an  instrument  of 

perpetual  efficacy 32 1 

Declaration  of  the  Rights  of  Man;  influence  of  Kentucky  and  Virginia  Resolutions  322 
Doctrine  of  secession  first  defined  about  1795;  Jefferson's  view  of  it  in  1798;  Quincy's 

outcry  in  181 1 ;  Story  and  Henry  in  1809 323 

Hartford  Convention,  1814;  Tucker's  Blackstone,  1803;  Judge  Rawle,  1825  .  .  .  324 
Persistency  of  the  idea  that  a  constitution  is  a  "compact";  extinguished  by  growth 

of  national  life;  antecedents  of  doctrine  taken  up  by  Calhoun  in  1847  .  .  .  .  325 

Garrison's  use  of  it  in  1845;  Calhoun's  move  for  cooperation  in  1847 326 

Calhoun's  view  of  the  Constitution;  his  resolutions  of  January  22,  1833  ....  327 
Calhoun's  famous  speech  of  February  15;  Webster's  reply;  Calhoun's  last  speech, 

March  4,  1850 328 

Two  revolutionary  movements;  authority  of  a  court  of  last  resort;  its  exclusive  right 

to  define  its  jurisdiction 329 

Lincoln's  declaration,  1858;  Seward's  "irrepressible  conflict";  collision  of  unlawful 

forces 330 

The  conflict  in  the  judicial  arena;  Marshall  as  a  dominating  force;  right  of  a  court 

to  annul  a  law 331 

Jay's  despairing  cry;  scope  of  Marshall's  work 332 

Supremacy  of  federal  law;  Pennsylvania  coerced 333 

Cohens  v.  Virginia;  Cherokee  Nation  v.  Georgia 334 

Worcester  v.  Georgia;  Pelatiah  Webster  blazed  the  way  for  Marshall;  "the  nation" 

and  "the  American  Constitution" 335 

Marshall's  definition  abides;  Dartmouth  College  case  limited  by  Taney  ....  336 

Admiralty  jurisdiction  redefined;  certain  questions  not  yet  justiciable 337 

Attempted  secession  of  the  Southern  States;  a  perfect  de  facto  government;  character 

of  contest  defined  by  Supreme  Court 338 

Chase  Chief  Justice,  December  6,  1864;  Texas  v.  White,  1869 339 

An  indestructible  union  defined 340 

Basis  of  our  new  national  life 341 

CHAPTER  XI 

THE   CIVIL   WAR   AMENDMENTS 

Civil  war  suddenly  precipitated;  North  without  a  programme;  reconstruction  defined  342 
Unity  of  the  three  amendments;  Thirteenth  Amendment;  slavery  in  territories  abol- 
ished, 1861 343 

Slavery  in  District  of  Columbia  abolished,  1862;  Emancipation  Proclamation,  1863; 


xxii  CONTENTS 

its  legal  effect;  exemptions  from  its  operation;  slavery  must  be  supported  by 

local  police 344 

Slavery  may  be  upheld  or  abolished  by  military  occupant;  never  abolished  until 

ratification  of  Thirteenth  Amendment 345 

Liberation  of  master  and  slave;  Mason's  declaration 346 

South's  advance  in  production;  a  legal  person  as  opposed  to  a  thing 347 

Fourteenth  Amendment;  an  Achaian  citizen;  Articles  of  Confederation  ....  348 
No  primary  citizenship  prior  to  Fourteenth  Amendment;  inquest  in  Dred  Scott  case; 

Justice  Curtis's  view 349 

Solecism  in  original  Constitution;  Section  I,  Fourteenth  Amendment;  Slaughter- 

House  cases 350 

Citizenship  not  previously  denned;  Dred  Scott  case  overturned 351 

What  privileges  the  nation  must  protect;  what  privileges  states  must  protect;  certain 

rights  of  national  citizenship 352 

Motives  prompting  Fourteenth  Amendment;  Guthrie's  view;  a  new  Magna  Carta  .  353 

Justice  Miller's  too  narrow  view;  Marshall's  rule 354 

San  Mateo  County  case;  Conkling's  statement;  Justice  Field  in  Railroad  Tax  cases  355 

Justice  Brown  in  Plessy  v.  Ferguson;  distinctions  based  on  color 356 

Civil  Rights  cases;  persons  born  "subject  to  the  jurisdiction" 357 

U.  S.  v.  Wong  Kim  Ark;  rule  in  Calvin's  case  followed;  a  corporation  a  person,  not  a 

citizen 358 

Power  of  exclusion;  39th  chapter  of  Magna  Carta,  1215 359 

Confirmatio  Cartarum,  1297;  Coke's  Second  Institute,  1632 360 

Blackstone,  1758;  influence  of  reformed  English  Constitution;  Bill  of  Rights  of  Vir- 
ginia, 1776 361 

Compulsory  self-incrimination  abolished;  restatements  of  chapter  39 362 

Genesis  of  English  conception  of  due  process  of  law 363 

A  government  of  law  as  distinguished  from  one  of  functionaries;  Murray  v.  Hoboken 

Land  Co.,  1856 364 

A  manifest  historical  error;  Davidson  v.  New  Orleans;  Hurtado  v.  California  .  .  .  365 

Lowe  v.  Kansas;  Twining  v.  New  Jersey 366 

Rule  of  inclusion  and  exclusion 367 

The  effort  to  narrow  federal  jurisdiction;  a  state  may  abolish  grand  jury  system;  may 

alter  number  of  petit  jury 368 

An  unsound  conclusion;  importance  of  our  first  bills  of  rights 369 

Prohibition  extends  to  all  state  acts;  Supreme  Court  guardian  of  new  citizenship  .  370 

Old  three-fifths  rule  abolished;  Fifteenth  Amendment 371 

Right  to  vote  drawn  from  state;  electors  of  House  of  Representatives 372 

Only  one  limitation  on  state  power;  Pope  v.  Williams 373 

Recent  Southern  constitutions;  Williams  v.  Mississippi 374 

Giles  v.  Harris;  primary  purpose  of  the  bill 375 

Industrial  education;  solution  of  race  problem 376 

CHAPTER  XII 

OUR  COLONIAL   SYSTEM  AND   THE  MONROE  DOCTRINE 

Relation  of  a  Greek  colony  to  parent  state;  relation  of  a  Roman  colony  to  parent 

state 377 

Modern  conception  of  the  state  as  nation;  colonies  of  states  of  the  new  type;  a 

colonial  system  of  complete  monopoly 378 

Adam  Smith  and  Navigation  Acts  of  1651 ;  Capt.  Mahan's  view;  Spain  as  a  colonizer  379 


CONTENTS  xxiii 

Siete  Partidas;  oppression  of  colonists;  England  as  a  colonizer;  great  title-deed  of 

April  10,  1606 380 

Its  terms  as  to  citizenship;  effect  of  conquest;  Calvin's  case;  colonists  denied  repre- 
sentation in  home  assembly 381 

Cause  of  War  of  the  Revolution;  our  denial  of  representation  to  colonists;  scheme 

embodied  in  Ordinance  of  1787;  Jefferson  head  of  committee 382 

No  self-government  at  outset;  distinctions  between  state  and  territory;  agreement 

between  Jefferson  and  Grenville 383 

Original  scheme  standard  for  imitation;  a  fanciful  outcry;  purchase  of  Louisiana,  1803 ; 

Territory  of  Orleans 384 

Territorial  ports;  Florida  purchase,  1820;  tenure  of  territorial  judges 385 

Treaty  of  Guadalupe-Hidalgo,  1848;  Webster  and  Clay  declare  Constitution  belongs 

to  states  alone;  Taney  in  Fleming  v.  Page 386 

Tampico  a  foreign  port;  summary  of  constitutional  law;  Chief  Justice  Waite's  view     387 
Insular  Tariff  cases;  De  Lima  v.  Bid  well;  Downes  v.  Bid  well;  limitations  on  power 

of  Congress  to  act  at  all 388 

Spain's  colonial  monopoly ;  Britain's  commercial  conquest  imperiled 389 

Real  origin  of  Monroe  Doctrine;  Castlereagh  superseded  by  Canning;  his  correspond- 
ence with  Rush,  1823;  submitted  by  Monroe  to  Jefferson;  an  American  system 

denned 390 

Control  of  Gulf  of  Mexico  and  acquisition  of  Cuba ;  approval  of  Madison  and  Calhoun     391 
European  system  not  to  be  extended  to  this  hemisphere;  no  interference  with  existing 

colonies 392 

Unsettled  boundaries  in  the  Northwest  ;•  ukase  of  September,  1821;  J.  Q.  Adams's 

declaration  of  July  17,  1823;  President  Polk's  message  of  December  25,  1845  .     .     393 
Clayton-Bulwer  Treaty,  1850;  France's  intervention  in  Mexico;  definition  of  Monroe 

Doctrine  completed  by  President  Cleveland 394 

Balance  of  power  in  Old  World  and  New 395 

Diplomatic  relations  with  the  Orient;  our  hegemony  in  Central  and  South  America; 

population  and  trade  of  the  Orient 396 

A  nation  must  grow  or  die;  Germany  and  Japan;  expansion  of  Great  Britain      .     .     397 

Expansion  of  the  United  States;  the  shores  of  the  Pacific  in  1852 398 

Mr.  Seward's  prophetic  speech,  July  29,  1852;  the  path  to  the  East;  reunion  of  two 

civilizations 399 

Influence  on  Asia;  United  States  already  involved  in  Oriental  problems     ....     400 
Influence  of  public  opinion  in  America  and  England 401 

CHAPTER  XIII 

INTERSTATE   COMMERCE,    TRUSTS,   AND   MONOPOLIES 

Transition  from  individualism  to  collectivism;  flight  of  the  founders  from  state  power  402 
Intrusion  of  state  power  in  France;  the  orgy  of  individualism;  the  state  a  monster 

to  be  fettered  with  paper  constitutions 403 

Creed  of  Jefferson's  party;  individualism  substructure  of  national  character;  words 

of  Emerson,  1844 4°4 

State  power  now  hailed  as  a  deliverer;  dependence  of  the  individual  on  the  state     .  405 

Illustrations 406 

Field  of  corporate  action  narrowed;  organized  labor;  the  age  of  collectivism  .     .     .  407 
Lecky's  misapprehension;  growing-power  of  American  Constitution;  causes  of  trans- 
ition from  individualism  to  collectivism 408 

A  world-movement  embracing  Europe  and  America;  Mr.  Bryce's  view  in  1888  .     .  409 


xxiv  CONTENTS 

Triumphs  of  physical  science;  unlimited  competition  too  strong  for  the  weak;  demo- 
cracies of  America  eager  for  state  interference;  Americans  charged  with  having  no 
theory  of  the  state 410 

A  swelling  volume  of  legislation;  subjection  of  corporate  power  to  state  control  .     .411 

Dartmouth  College  case,  1819;  a  charter  a  contract;  an  important  modification      .     412 

Police  power  excepted;  "property  rights  not  governmental";  Holden  v.  Hardy;  three 
overworked  parts  of  the  Constitution 413 

Section  I,  Fourteenth  Amendment;  contract  clause;  commerce  clause;  Marshall's 
dream  in  Cohens  v.  Virginia 414 

Evolution  of  the  commerce  clause;  Pinckney  draft;  action  of  Convention,  August  16; 
additional  words,  September  4  .  . 415 

Gibbons  v.  Ogden,  1824;  monopoly  backed  by  state  power  yields  to  federal  power     416 

Brown  v.  Maryland,  1827;  License  cases,  1847;  opinion  of  Chief  Justice  Taney  .     .     417 

Passenger  cases,  1849;  exclusive  control  by  Congress;  pilots  and  pilotage    .     .     .     .     418 

Control  of  telegraph  companies;  final  extension  of  admiralty  jurisdiction;  interstate 
Commerce  Commission,  February  4,  1887 419 

Water  transportation  eclipsed  by  steam;  right  of  Congress  to  grant  charters  to  rail- 
roads   420 

Jurisdiction  of  Interstate  Commerce  Commission;  prior  regulation  by  common  law; 
objects  of  Act  of  February  4,  1887,  declared 421 

Judicial  review  of  rates  fixed  by  legislature  or  commission;  right  of  Commission  to 
prescribe  rates 422 

Commission  has  judicial  but  not  legislative  power;  freedom  of  interstate  commerce 
from  state  control 423 

Intrastate  commerce  defined;  state  has  no  power  to  destroy;  extent  of  its  police 
power 424 

Subsequent  modifications;  police  power  of  state  and  commerce  power  of  Congress    425 

Separate  accommodations  on  account  of  race;  permissible  state  taxation  and  regula- 
tion; state  inspection  laws 426 

Pure-food  acts;  liquor  traffic;  Justice  Field  runs  the  line 427 

Exemption  of  original  packages;  amendment  of  June  18,  1910 428 

Three  new  subject-matters  in  Act  of  June  18,  1910;  a  summary  of  statutes;  pipe- 
lines, telegraph,  telephone,  and  cable  companies  common  carriers 429 

Jurisdiction  of  Commerce  Court;  investigation  of  railroad  stocks  and  bonds;  railroad 
capitalization 430 

Federal  control  of  all  agencies  of  interstate  commerce;  corporations  to  engage  in 
interstate  and  international  trade 431 

Federal  control  of  corporations;  excise  tax  on  business;  federal  Anti-Trust  Act  of  July 
2,  1890;  prior  anti-trust  state  statutes 432 

Zeno's  edict  against  monopolies,  A.  D.  483;  early  English  law  as  to  contracts  in  re- 
straint of  trade 433 

Monopolies  in  time  of  Edward  VI;  monopolies  of  Elizabeth;  anti-monopoly  statute 
of  21  James  I,  c.  32;  became  basic  in  this  country 434 

Its  principles  modified  in  England;  American  courts  fall  back  on  earlier  English 
doctrine;  how  Anti-Trust  Act  was  understood  by  its  authors 435 

Literal  construction  of  1897;  U.  S.  v.  E.  C.  Knight  Co.,  1895 436 

Attorney-General's  reports  of  1895,  1896;  Re  Debs,  1895;  United  States  v.  Trans- 
Missouri  Freight  Association,  1897 437 

Single  ownership  in  "holding  corporations";  surrender  of  McKinley  Administration    438 

Roosevelt  and  Knox;  Northern  Securities  Co.  decision,  1904;  Justice  Brewer's  im- 
portant qualification 439 

Justice  White's  dissent;  Justice  Holmes's  dissent 440 


CONTENTS  xxv 

Combinations  that  do  good  distinguished  from  those  that  do  evil;  danger  of  literal 

construction;  amendment  of  Anti-Trust  Act  proposed 441 

Case  of  American  Tobacco  Co.,  1908;  Act  termed  revolutionary 442 

Review  by  Morawetz;  a  popular  error  assailed;  cases  divided  into  four  classes;  Debs 

case 443 

Hatters'  case;  the  Traffic  cases;  an  important  distinction 444 

Holding  companies;  pooling  contracts;  necessity  for  uniformity  of  rates     ....     445 

Contracts  for  diminishing  competition;  Addyston  Pipe  Co.  case 446 

Contracts  not  unlawful  at  common  law;  when  restricting  contracts  necessary;  mean- 
ing of  the  words  "to  monopolize"     447 

The  outcome  of  collectivism;  growth  of  state  power  necessarily  curtails  individual 

rights;  Justice  Harlan's  forecast 448 

How  the  finer  problems  of  law  must  be  solved;  teachings  of  Roman  and  English  law    449 
Literal  or  strained  constructions  to  be  avoided ;  line  dividing  legitimate  competitors 
from  monopolists;  use  of  unlawful   means;  "judicial  inclusion  and  exclusion"; 

meaning  of  the  phrase  "  to  monopolize  ";  Montague  v.  Lo wry 450 

How  much  of  the  commerce  in  an  article  must  be  monopolized?  the  question  of 

degree 451 

Again  the  rule  of  "inclusion  and  exclusion";  summary 452 

CHAPTER  XIV 

THE   OUTCOME   OF   OUR  GROWTH 

Birthtime  of  the  nation;  rapidity  of  its  development;  area  and  population  of  original 

states 453 

Subsequent  acquisitions;  existing  conditions 454 

Summary 456 

Constitutional  limitations  an  American  invention;  powers  of  colonial  assemblies 

limited  by  charters .  .  457 

A  confederation  of  the  old  type;  failure  of  first  American  experiment;  attributes  of 

the  new  creation 458 

Federal  governments  revolutionized;  federation  of  British  Empire;  federal  unions 

of  Latin  America;  Constitution  of  Mexico 459 

A  glaring  solecism  in  Constitution  of  1787 460 

A  government  without  citizens;  vital  question  in  Dred  Scott  case;  new  citizenship 

created  by  Fourteenth  Amendment 461 

Transition  from  individualism  to  collectivism;  dread  of  state  power  nurtured  by 

French  Revolution;  its  effect  upon  Jefferson;   "narrowing  circle  of  individual 

rights" 462 

The  industrial  revolution;  transition  from  political  to  economic  problems  ....  463 
Struggle  of  the  masses  against  monopoly;  "the  colossus  of  business";  old  dread  of 

governmental  power  discarded 464 

Words  of  Mr.  Goschen;  abnormal  demands  upon  Government;  reestablishment  of 

rights  of  individual 465 

Demand  for  creative  statesmanship;  unification  of  American  law 466 

Code  Napoleon  completed  in  four  years;  new  German  code  of  1900;  influence  of 

commerce  in  unifying  law 467 

Our  effort  to  establish  uniform  commercial  system;  a  merchant  the  father  of  the 

Constitution 468 

"Conflict  of  laws";  forty-seven  sources  of  statute  law;  inconveniences  increase  with 

rapid  intercommunication 469 


xxvi  CONTENTS 

Four  great  agencies  at  work;  American  Bar  Association  and  its  yoke-fellow;  results 

already  attained ;  National  Civic  Federation 470 

"The  House  of  Governors";  need  for  a  typical  code  of  state  law 471 

How  it  should  be  constructed;  how  it  may  be  adopted;  need  of  a  Federal  Code  Com- 
mission    472 

Need  of  a  simpler  system  of  legal  procedure;  national  life  should  be  strengthened 

through  unification  of  law 473 

APPENDIX 

SELECT   DOCUMENTS    ILLUSTRATIVE     OF    AMERICAN    CONSTITUTIONAL 

HISTORY 

I.  Articles  of  Confederation  of  the  United  Colonies  of  New  England,  1643    .  477 

II.   Penn's  plan  of  Union,  1697 483 

III.  Coxe  and  Franklin's  plan,  1754 484 

IV.  Declaration  of  Rights  and  Liberties  made  by  Stamp  Act  Congress,  1765  .  495 
V.   Parliament's  Declaratory  Act  of  March  1 8,  1766 497 

VI.   Declaration  of  Rights  and  Liberties  made  by  First  Continental  Congress, 

1774 498 

VII.  The  Mecklenburg  Declaration  of  Independence  of  May  31,  1775      ...  502 

VIII.  Virginia's  Bill  of  Rights  adopted  June  12,  1776 510 

IX.   The  Declaration  of  Independence  of  July  4,  1776 515 

X.  Articles  of  Confederation,  1777 5*7 

XL   The  epoch-making  document  of  February  16,  1783,  in  which  is  embodied 

the  first  draft  of  the  existing  Constitution  of  the  United  States ....  526 
XII.  The  Virginia  plan  and  Madison's  sketch  of  a  Constitution  embodied  in 

his  three  letters  of  March  and  April,  1787 550 

XIII.  The  Charles  Pinckney  Plan 562 

XIV.  The  Alexander  Hamilton  Plan 568 

XV.   The  New  Jersey  Plan 580 

XVI.   The  twenty-three  resolutions  referred  to  the  Committee  of  Detail,  July  26  583 

XVII.   Draft  of  Constitution  reported  by  Committee  of  Detail  on  August  6     .    .  586 

XVIII.    The  Constitution  as  Reported  by  the  Committee  on  Style  on  September  12  594 
XIX.   Pelatiah  Webster's  defense   of  the  new  Constitution,  October  12.   The 

first  commentary  upon  it 603 

XX.  The  Constitution  and  its  amendments,  with  notes  and  annotations  to  date  610 


TABLE    OF    CASES 

IN  WHICH  THE  CONSTITUTION  HAS  BEEN 
CONSTRUED 


In  this  table  the  figures  in  heavy  type  indicate  the  pages  on  which  the  respective 
cases  are  stated  or  discussed  at  greater  or  less  length. 


Ableman  v.  Booth,  21  How.,  620,  631,  634, 

635,  642. 
Adair  v.  United  States,  208  U.  S.,  407,  617, 

640. 

Adams  v.  New  York,  192  U.  S.,  638,  640. 
Adams  Ex.  Co.  v.  Ohio,  165  U.  S.,  616,  646. 
Addyston  Pipe  Co.  v.  U.  S.,  175  U.  S.,  445, 

617. 
Alabama  &  V.  R.  R.  v.  Miss.  R.  R.  Com., 

203  U.  S.,  647. 

Alexander's  Cotton,  2  Wall.,  618. 
Alicia,  the,  7  Wall.,  630. 
Allen  v.  B.  &  O.  R.  R.,  114  U.  S.,  623. 
v.  Georgia,  166  U.  S.,  646. 
v.  Pullman  Co.,  191  U.  S.,  617. 
Allgeyer  v.  Louisiana,  165  U.  S.,  624,  646. 
Allis  v.  U.  S.,  155  U.  S.,  242. 
Allison  v.  U.  S.,  160  U.  S.,  242. 
Almy  v.  California,  24  How.,  625. 
American  Exp.  Co.  v.  Iowa,  196  U.  S.,  617. 
American  Ins.  Co.  v.  Canter,  i  Pet.,  265, 266, 

385,  618,  619,  627,  629,  634. 
v.  Bales  of  Cotton,  385. 
American  Pub.  Co.  v.  Fisher,  166  U.  S.,  634, 

641. 
American  Smelting  &  R.  Co.  t>.  Colo.,  204 

U.  S.f  624. 
American  Steel  &  W.  Co.  v.  Speed,  192  U.  S., 

428,  617,  625. 

American  Sug.  Ref.  Co.  v.  La.,  179  U.  S.,  647. 
American  Tobacco  Co.  v.  Werckmeiser,  207 

U.  S.,  638. 

Ames  v.  Kansas,  in  U.  S.,  628,  631. 
Amy  v.  Shelby  County,  114  U.  S.,  623. 
Andersen  v.  Treat,  172  U.  S.,  239,  240. 
Anderson  v.  Dunn,  6  Wheat.,  612,  642. 
Andrews  v.  Andrews,  188  U.  S.,  630, 632, 642. 

v.  Swartz,  156  U.  S.,  639,  646. 
Anglo-Amer.  Prov.  Co.  v.  Davis  Prov.  Co., 

191  U.  S.,  632,  633. 
Antelope,  the,  10  Med.,  253n. 
Appleyard  v.  Mass.,  203  U.  S.,  633. 
Arbuckle  v.  Blackburn,  191  U.  S.,  630. 


Arkansas  So.  R.  R.  v.  La.,  218  U.  S.,  624. 
Arkansas  Valley  L.  &  C.  Co.  v.  Mann,  130 

U.  S.,  641. 
Armour  Packing  Co.  v.  U.  S.,  209  U.  S.,  621, 

632,  641. 
Armstrong  v.  Athens  County,  16  Pet.,  622. 

v.  U.  S.,  13  Wall.,  627. 
Armstrong's  Foundry,  6  Wall.,  627. 
Arrowsmith  v.  Harmoning,  118  U.  S.,  645. 
Asbell  f.  Kansas,  209  U.  S.,  617. 
Asher  v.  Texas,  128  U.  S.,  616. 
Ashley  v.  Ryan,  153  U.  S.,  616. 
Aspinwall    v.    County    Commissioners,    22 

How.,  622. 
Atchison,  T.  &  S.  F.  R.  R.  v.  Matthews,  174 

U.  S.,  647. 

Atlantic  &  Ga.  R.  R.  v.  Georgia,  98  U.  S.,  622. 

Atlantic  Coast  Line  v.  Florida,  203  U.  S.,  647. 

v.  No.  Car.  Corp.  Com.,  206  U.  S.,  647. 

v.  Wharton,  207  U.  S.,  617. 

Att'y-Gen'l  v.  Western    U.  Tel.  Co.,   141 

U.  S.,  616. 
Ayers,  in  re,  123  U.  S.,  247,  642. 

Bachtel  v.  Wilson,  204  U.  S.,  647. 
Bacon  v.  Walker,  204  U.  S.,  647. 
Bain,  ex  parte,  121  U.  S.,  639. 
Baker  v.  Kilgore,  145  U.  S.,  623. 
Baldwin  v.  Franks,  120  U.  S.,  630,  645. 
Ballard  v.  Hunter,  204  U.  S.,  647. 
Baltimore  &  O.  R.  R.  v.  Maryland,  21  Wall., 

615. 
Baltimore  &  Susq.  R.  R.  v.  Nesbitt,  10  How., 

622. 

Baltzer  v.  No.  Carolina,  161  U.  S.,  624. 
Bank  v.  Supervisors,  7  Wall.,  615. 
Bank  of  Alabama  v.  Dalton,  9  How.,  632. 
Bank  of  Augusta  v.  Earle,  13  Pet.,  629,  632, 

633. 

Bank  of  Columbia  v.  Okely,  4  Wheat.,  641. 
Bank  of  Commerce  v.  New  York,  2  Black, 

614,  615. 
v.  Tennessee,  161  U.  S.,  624. 


XXV111 


TABLE  OF  CASES 


Bank  of  Hamilton  v.  Dudley,  2  Pet.,  334- 
Bank  of  Redemption  v.  Boston,  125  U.  S.,  645. 
Bank  of  U.  S.  v.  Deveaux,  5  Cr.,  629,  633. 

v.  Halstead,  10  Wheat.,  619,  631. 

».  Planters'  Bk.,  9  Wheat.,  642. 
Bank  Tax  Cases,  2  Wall.,  615. 
Bankers'  Cas.  Co.  v.  Minn.,  St.  P.  &  S.  S.  M. 

R.  R.,  192  U.  S.,  630. 
Banks  v.  New  York,  7  Wall.,  615. 
Barbier  v.  Connolly,  113  U.  S.,  645. 
Baring  v.  Dabney,  19  Wall.,  622. 
Barnitz  v.  Beverly,  163  U.  S.,  624. 
Barrington  v.  Mo.,  205  U.  S.,  640,  647. 
Barron  v.  Baltimore,  7  Pet.,  229n.,  237,  610. 

v.  Burnside,  121  U.  S.,  616,  630. 
Bartemeyer  v.  Iowa,  18  Wall.,  427,  615,  649. 
Barton  v.  Barbour,  104  U.  S.,  631. 
Bassing  v.  Cady,  208  U.  S.,  633,  640. 
Bates  v.  Brown,  5  Wall.,  26sn. 
Battle  v.  U.  S.,  209  U.  S.,  619. 
Bauman  v.  Ross,  167  U.  S.,  639. 
Bayard  v.  Singleton,  i  No.  Car.,  104. 
Baylis  v.  Trav.  Ins.  Co.,  113  U.  S.,  241. 
Beall  v.  New  Mexico,  16  Wall.,  634. 
Beavers  v.  Haubert,  198  U.  S.,  640. 

v.  Henkel,  194  U.  S.,  640. 
Bedford  v.  U.  S.,  192  U.  S.,  639. 
Beers  v.  Arkansas,  20  How.,  622. 

v.  Glynn,  211  U.  S.,  648. 

v.  Haughton,  9  Pet.,  618,  621. 
Bell's  Gap  R.  R.  v.  Penn.,  134  U.  S.,  645. 
Benner  v.  Porter,  9  How.,  628. 
Benson  v.  U.  S.,  146  U.  S.,  619,  634. 
Berea  College  v.  Kentucky,  211  U.  S.,  648. 
Bergmann  v.  Backer,  157  U.  S.,  640,  655. 
Bernheimer  v.  Converse,  206  U.  S.,  624,  647. 
Bier  v.  McGehee,  148  U.  S.,  623. 
Bigelow  v.  Forrest,  9  Wall.,  632. 
Binghamton  Bridge,  the,  3  Wall.,  622. 
Binns  v.  U.  S.,  194  U.  S.,  614,  634. 
Bitterman  v.  L.  &  N.  R.  R.,  207  U.  S.,  648. 
Blackstone  v.  Miller,  188  U.  S.,  632,  633. 
Blair  v.  Chicago,  201  U.  S.,  624. 
Blake  v.  McClung,  172  U.  S.,  633,  647. 

v.  McClung,  176  U.  S.,  633. 
Blount  ».  Walker,  134  U.  S.,  632. 
Blyew  v.  U.  S.,  13  Wall.,  630. 
Board  of  Educ.  v.  Illinois,  203  U.  S.,  647. 
Board  of  Public  Works  v.  Columbia  Coll., 

17  Wall.,  632. 

Bobbs-Merrill  Co.  v.  Straus,  210  U.  S.,  618. 
Bollman,  ex  parte,  4  Cr.,  620,  629,  632. 
Bolln  v.  Nebraska,  176  U.  S.,  634,  647. 
Bonaparte  v.  Tax  Court,  104  U.  S.,  632. 
Bonner  v.  Gonnan,  213  U.  S.,  648. 
Bors  v.  Preston,  in  U.  S.,  631. 
Boston  Beer  Co.  ».  Mass.,  97  U.  S.,  615. 
Bowman  v.  Chicago  &  N.  W.  R.  R.,  125 
U.  S.,  427,  428,  616,  642. 

v.  Middleton,  I  Bay  (S.  C.),  104,  105. 


Boyd  v.  U.  S.,  116  U.  S.,  234,  639. 
Boyle  v.  Zacharie,  6  Pet.,  618. 
Bradfield  v.  Roberts,  175  U.  S.,  638. 
Bradley  v.  Illinois,  4  Wall.,  614. 
Bradwell  v.  Illinois,  16  Wall.,  633,  649. 
Brass  v.  Stoeser,  153  U.  S.,  616,  646. 
Breedlove  v.  Nicolet,  7  Pet.,  629. 
Brennan  v.  Titusville,  153  U.  S.,  616. 
Bridge  Prop'rs  v.  Hoboken  Land  I.  Co.,  I 

Wall.,  622. 

Brimmer  v.  Rebman,  138  U.  S.,  616. 
Briscoez>.  Bank  of  Ky.,  n  Pet.,  618,621,642. 
Bronson  v.  Kinzie,  i  How.,  622. 
Brooks  v.  Missouri,  124  U.  S.,  630. 
Brown  v.  Fletcher,  210  U.  S.,  633. 

v.  Grant,  116  U.  S.,  639. 

v.  Houston,  114  U.  S.,  615,  622,  632, 

633. 

v.  Keene,  8  Pet.,  629. 
v.  Maryland,  12  Wheat.,  417, 610,615, 

625. 

v.  New  Jersey,  175  U.  S.,  229n.,  647. 
v.  Smart,  145  U.  S.,  623,  646. 
v.  U.  S.,  8  Cr.,  618. 
v.  Walker,  161  U.  S.,  639. 
Brown-Fomian  Co.  v.  Kentucky,  217  U.  S., 

648. 

Buck  v.  Beach,  206  U.  S.,  647. 
Buckner  v.  Finley,  2  Pet.,  635,  642. 
Budd  v.  New  York,  143  U.  S.,  616,  646. 
Burke  v.  Wells,  208  U.  S.,  617. 
Burrow-Giles  Lithog.   Co.   v.   Sarony,    ill 

U.  S.,  618. 
Butler  v.  Goreley,  146  U.  S.,  623,  646. 

v.  Penn.,  10  How.,  622. 
Buttfield  v.  Stranahan,  192  U.  S.,  617,  620, 

640. 

Butz  v.  Muscatine,  8  Wall.,  622. 
Byrne  v.  Missouri,  8  Pet.,  621. 

Cahen  v.  Brewster,  203  U.  S.,  647. 
Calder  v.  Bull,  3  Dall.,  621,  635. 

v.  Michigan,  218  U.  S.,  624. 
Caldwell  v.  Carrington,  9  Pet.,  632. 

v.  Texas,  137  U.  S.,  639,  646. 
California  v.  Cent.  Pac.  R.  R.,  127  U.  S., 

419,  420,  614,  616. 

Callan  v.  Wilson,  127  U.  S.,  240,  631,  634. 
Calvin's  case,  2  State  Trials,  358,  381. 
Camfield  v.  U.  S.,  167  U.  S.,  634. 
Campbell  v.  Holt,  115  U.  S.,  645. 

v.  Wade,  132  U.  S.,  623. 
Cannon  v.  New  Orleans,  20  Wall.,  625. 
Capital  City  Dairy  Co.  v.  Ohio,  183  U.  S., 

617,  639. 

Carfer  ».  Caldwell,  200  U.  S.,  620,  631. 
Cargill  Co.  v.  Minnesota,  180  U.  S.,  617,  631, 

632. 
Carpenter  v.  Penn.,  17  How.,  620,  622. 

v.  Strange,  141  U.  S.,  632. 


TABLE  OF  CASES 


XXIX 


Carroll  County  v.  Smith,  in  U.  S.,  633. 

Carter  v.  Texas,  177  U.  S.,  647. 

Cary  v.  Curtis,  3  How.,  629. 

Castle  v.  Bullard,  23  How.,  241. 

Gates  v.  Allen,  149  U.  S.,  641. 

Central  Georgia  R.  R.  v.  Murphey,  196  U.  S., 

617,  642,  648. 
Central  Land  Co.  v.  Laidley,  159  U.  S.,  623, 

646. 
Central  L.  &  T.  Co.  v.  Campbell  Com.  Co., 

173  U.  S.,  647. 
Central  R.  R.  of  N.  J.  v.  Jersey  City,  209 

U.  S.,  648. 

Chad  wick  v.  Kelley,  187  U.  S.,  633. 
Chae  Chan  Ping  v.  U.  S.,  130  U.  S.,  610,  618, 

620,  623,  630. 

Chambers  v.  B.  &  O.  R.  R.,  207  U.  S.,  633. 
Chandler  v.  Dix,  194  U.  S.,  642. 
Chanler  v.  Kelsey,  205  U.  S.,  647. 
Chapman,  in  re,  166  U.  S.,  612,  638. 
Chappedelaine  v.  Dechenaux,  4  Cr.,  629. 
Chappell  ».  U.  S.,  160  U.  S.,  619,  630,  641. 
Charles  Riv.  Br.  v.  Warren  Br.,  n  Pet.,  336, 

337,  412,  413,  622. 
Charlotte,  C.  &  A.  R.  R.  v.  Gibbes,  142  U.  S., 

646. 

Chemung  Bank  v.  Lowery,  93  U.  S.,  633. 
Cherokee  Nation  v.  Georgia,  5  Pet.,  334,  627, 

629,  631,  642. 
v.  So.  Kansas  R.  R.,  135  U.  S.,  616, 

623,  635,  639. 
Chesapeake  &  O.  R.  R.  v.  Kentucky,  179 

U.  S.,  617. 
Chicago  &  A.  R.  R.  v.  Wiggins  Ferry  Co., 

119  U.  S.,  632. 
Chicago  &  G.  T.  R.  R.  v.  Wellman,  143  U.  S., 

616. 
Chicago  &  N.  W.  R.  R.  v.  Fuller,  17  Wall., 

615- 

v.  Whitton,  13  Wall.,  630. 
Chicago,  B.  &  Q.  R.  R.  «.  Babcock,  204  U.  S., 

647. 

v.  Chicago,  166  U.  S.,  641,  646. 
v.  Illinois,  200  U.  S.,  640. 
v.  Iowa,  94  U.  S.,  425. 
v.  Nebraska,  170  U.  S.,  624. 
Chicago,  M.  &  S.  P.  R.  R.  v.  Minnesota,  134 

U.  S.,  425,  639,  645. 
v.  Solan,  169  U.  S.,  616. 
Chicago,  R.  I.  &  P.  R.  R.  v.  Sturm,  174  U.  S., 

632. 
Chicago  Life  Ins.  Co.  v.  Needles,  113  U.  S., 

623. 
Chinese  Exclusion  Case.    See  Chae  Chan 

Ping  v.  U.  S. 

Chirac  v.  Chirac,  2  Wheat.,  635. 
Chisholm  v.  Georgia,  2  Dall.,  246,  293,  610, 

626,  628,  629,  631,  641,  642. 
Christ  Church  v.  Phila.  County,  24  How., 

622. 


Christian  v.  Atlantic  &  N.  C.  R.  R.,  133 

U.  S.,  630. 

Christmas  v.  Russell,  5  Wall.,  632. 
Church  v.  Kelsey,  121  U.  S.,  623,  642,  645. 
Church  of  Jesus  Christ  of  Latter- Day  Saints 

v.  U.  S.,  136  U.  S.,  230,  294n.,  618,  623, 

634,  636. 

Chy  Lung  v.  Freeman,  92  U.  S.,  615. 
Cincinnati,  I.  &  W.  R.  R.  v.  Connersville, 

218  U.  S.,  648. 
Cincinnati,  N.  O.  &  T.  P.  R.  R.  v.  Kentucky, 

II5U.  S.,  645. 
Cincinnati,  P.  B.  S.  &  P.  Packet  Co.  v. 

tCatlettsburg,  105  U.  S.,  621,  625. 
Circassian,  the,  339. 
Citizens'  Nat.  Bk.  v.  Kentucky,  217  U.  S., 

624. 
Citizens'  Sav.  Bank  v.  Owensboro,  173  U.  SM 

624. 
City  &  Lake  R.  R.  v.  New  Orleans,  157 

U.  S.,  624. 

City  of  Baltimore,  the,  7  Pet.,  639. 
Civil  Rights  Case.  See  U.  S.  v.  Stanley. 
Claflin  v.  Houseman,  93  U.  SM  610,  642. 
Clark  v.  Kansas  City,  176  U.  S.,  647. 
Clarke,  ex  parte,  100  U.  S.,  612. 
Clarke  v.  Clarke,  178  U.  S.,  632. 
Cleveland  v.  Cleveland  City  Ry.,  194  U.  S., 

630. 

v.  Cleveland  Elec.  RyM  201  U.  S.,  624. 
Cleveland,   C.,  etc.,  R.  R.  v.  Porter,  210 

U.  S.,  648. 
Cleveland  Elec.  Ry.  v.  Cleveland,  204  U.  S., 

624,  647. 

Clinton  v.  Englebrecht,  13  Wall.,  26sn.,  634. 
Clinton  Bridge,  the,  10  Wall.,  615. 
Clough  v.  Curtis,  134  U.  S.,  631. 
Clune  v.  U.  S.,  159  U.  S.,  620. 
Clyatt  v.  U.  S.,  197  U.  S.,  644. 
Coal  Co.  v.  Blatchford,  n  Wall.,  630. 
Coffey  v.  Harlan  County,  204  U.  S.,  647. 
Cohens  v.  Virginia,  6  Wheat.,  153,  154,  211, 

247,  329, 334,  414,  619,  628,  629,  631,  642. 
Cole  v.  Cunningham,  133  U.  S.,  632,  633. 

v.  La  Grange,  113  U.  S.f  639. 
Collectors.  Day,  n  Wall.,  614,  642. 
Collins  v.  New  Hampshire,  171  U.  S.,  616. 
Colson  v.  Lewis,  2  Wheat.,  629. 
Columbus  So.  R.  R.  v.  Wright,  151  U.  S., 

646. 
Commerical  &  R.  R.  Bank  v.  Slocomb,  14 

Pet.,  629. 
Commonwealth  v.  Caton,  4  Call  (Va.),  44, 

104. 

Conner  v.  Elliot,  18  How.,  633. 
Consolidated   Rendering   Co.   v.   Vermont, 

207  U.  S.,  638,  640,  647. 
Converse,  in  re,  137  U.  S.,  646. 
Conway  v.  Taylor,  i  Black,  615. 
Cook  v.  Marshall  County,  196  U.  S.,  617., 


XXX 


TABLE  OF  CASES 


Cook  v.  Moffat,  5  How.,  618,  622. 
v.  Perm.,  97  U.  S.,  615,  625. 
v.  U.  S.,  138  U.  S.,  620,  623,  631,  640. 
Cook  County  v.  Calumet  &  C.  Canal  Co., 

138  U.  S.,  623,  635. 
Cooke  v.  Avery,  147  U.  S.,  630. 
Cooley  v.  Wardens  of  Phila.,  12  How.,  418, 

419,  615,  621,  625. 
Cooper  Mfg.  Co.  v.  Ferguson,  113  U.  S., 

615. 

Cope  v.  Cope,  137  U.  S.,  634. 
Cornell  v.  Coyne,  192  U.  S.,  621,  625. 
Corson  v.  Maryland,  120  U.  S.,  616. 
Cosmopolitan  Club  v.  Virginia,  208  U.  S., 

624,  648. 

Coughran  v.  Bigelow,  164  U.  S.,  641. 
Counselman  ».  Hitchcock,  142  U.  S.,  639. 
County  Court  v.  U.  S.,  140  U.  S.,  623. 
Coupon  Cases,  135  U.  S.,  642. 
Covington  v.  Kentucky,  173  U.  S.,  624. 
Covington    Bridge    Co.   v.   Kentucky,    154 

U.  S.,  424,  616. 
Covington  &  L.  Turnpike  Co.  v.  Sandford, 

164  U.  S.,  358,  624,  646. 
Cox  v.  Texas,  202  U.  S.,  647. 
Coxe  v.  M'Clenachan,  3  Dall.,  613. 
Coy,  in  re,  127  U.  S.,  612,  620. 
Craig  v.  Leitensdorfer,  127  U.  S.,  630,  631. 

v.  Missouri,  4  Pet.,  621. 
Grain  v.  U.  S.,  162  U.  S.,  236. 
Crandall  v.  Nevada,  6  Wall.,  352,  615,  619, 

625,  633,  649. 

Crane,  ex  parte,  5  Pet.,  631. 
Crawford  v.  Bank,  7  How.,  622. 
Crenshaw  v.  U.  S.,  134  U.  S.,  623. 
Cross  v.  Harrison,  16  How.,  634. 

v.  No.  Carolina,  132  U.  S.,  639,  645. 
Grossman  v.  Lurman,  192  U.  S.,  427,  617. 
Crowley  v.  Christensen,  137  U.  S.,  646. 
Crutcher  v.  Kentucky,  141  U.  S.,  616. 
Gumming  v.  Richmond  County  B'd  of  Educ., 

175  U.  S.,  647. 
Cummings  v.  Chicago,  188  U.  S.,  617,  630. 

v.  Missouri,  4  Wall.,  620,  622. 
Curran  v.  Arkansas,  15  How.,  622,  642. 
Curtis  v.  Whitney,  13  Wall.,  622. 

Dale  Mfg.  Co.  v.  Hyatt,  125  U.  S.,  630. 
Danbury    Hatters'    Case.     See    Loewe    v. 

Lawlor. 

Daniel  Ball,  the,  10  Wall.,  42411.,  615. 
Darby  r.  Mayer,  10  Wheat.,  632. 
Darcy  v.  Allain,  13  Rep.,  434. 
D'Arcy  v.  Ketchum,  II  How.,  632. 
Darnell  v.  Memphis,  208  U.  S.,  617,  648. 
Darrington  v.  Bank,  13  How.,  622. 
Dartmouth  College  v.  Woodward,  4  Wheat., 

93,  94,  336,  354,  4",  4*4,  621. 
Davidson  v.  New  Orleans,  96  U.  S.,  77,  78, 

k     222,  237,  365,  367,  368,  450. 


Davis  v.  Beason,  133  U.  S.,  634,  638,  645. 
v.  Gray,  16  Wall.,  630. 
v.  Mass.,  167  U.  S.,  646. 
v.  Packard,  6  Pet.,  629. 
v.  Packard,  7  Pet.,  629. 
v.  Packard,  8  Pet.,  629. 
v.  State,  68  Ala.,  io5n. 
v.  Texas,  139  U.  S.,  229n. 
Dawson  ».  Columbia  Trust  Co.,  197  U.  S., 

631. 

Day  v.  Micou,  18  Wall.,  632. 
Debs,  in  re,  158  U.  S.,  437  and  n.,  443,  610, 

616,  618,  631. 

Delamater  v.  So.  Dakota,  205  U.  S.,  620. 
Delaware,  L.  &  W.  R.  R.  v.  Penn.,  198  U.  S., 

625. 

Delaware  R.  R.  Tax,  18  Wall.,  615. 
De  Lima  v.  Bidwell,  182  U.  S.,  388,  610,614, 

621,  634. 
Delmar  Jockey  Club  v.  Missouri,  210  U.  S., 

648. 
Denny  v.  Bennett,  128  U.  S.,  623. 


Dent  v.  West  Virginia,  129  U.  S.,  645. 
-t,  191  U.  S., 
De  Treville  v.  Smalls,  98  U.  S.,  611. 


Deposit  Bank  v.  Frankfort, 


630. 


Detroit,  Ft.  W.  &  B.  I.  R.  R.  v.  Osborn,  189 

U.  S.,  630. 

Devine  v.  Los  Angeles,  202  U.  S.,  624,  649. 
Dewey  v.  Des  Moines,  173  U.  S.,  647. 
Diamond  Glue  Co.  v.  U.  S.  Glue  Co.,  187 

U.  S.,  617,  624,  633. 
Diamond  Rings  (14)  v.  U.  S.,  183  U.  S.,  614, 

621,  627,  634. 

Dick  v.  U.  S.,  208  U.  S.,  617. 
Disconto  Gesellschaft  v.  Umbreit,  208  U.  S., 

648. 
District  of  Columbia  v.  Brooke,  214  U.  S., 

648. 

Dobbins  v.  Erie  County,  16  Pet.,  614. 
Dodge  v.  Woolsey,  18  How.,  622,  635. 
Dooley  v.  U.  S.,  182  U.  S.,  614,  630,  634. 

v.  U.  S.,  183  U.  S.,  621,  625. 
Dorr,  ex  parte,  3  How.,  620. 
Dorr  v.  U.  S.,  195  U.  S.,  627,  632,  634,  640. 
Douglas  v.  Kentucky,  168  U.  S.,  624. 
Dow  v.  Beidelman,  125  U.  S.,  645. 
Downesf.  Bidwell,  182  U.  S.,  266,  267, 27411. 

275n.,  3851.,  388,  389,  634. 
Downham  v.  Alexandria  Council,  10  Wall., 

615,  633. 

Doyle  v.  Ins.  Co.,  94  U.  S.,  630. 
Drehman  v.  Stifle,  8  Wall.,  620,  622. 
Dreyer  v.  Illinois,  187  U.  S.,  639. 
Dubuque  &  S.  C.  R.  R.  v.  Richmond,  19 

Wall.,  615. 

Duncan,  in  re,  139  U.  S.,  620,  635,  646. 
Duncan  v.  Missouri,  152  U.  S.,  606,  623. 
Dunphy  v.  Kleinschmidt,  II  Wall.,  619. 
Durousseau  v.  U.  S.,  6  Cr.,  629,  631. 
Dynes  v.  Hoover,  20  How.,  619,  639. 


TABLE  OF  CASES 


XXXI 


Eagle  Ins.  Co.  v.  Ohio,  153  U.  S.,  623. 
East  Saginaw  Salt  Co.  v.  East  Saginaw,  13 

Wall.,  622. 
Eastern  B'ld'g  Assoc.  v.  Welling,  181  U.  S., 

630. 

Edwards  v.  Kearzey,  96  U.  S.,  622. 
Edye  v.  Robertson,  112  U.  S.,  615. 
Effinger  v.  Kenney,  115  U.  S.,  623. 
Eilenbecker  v.  Plymouth  County,  134  U.  S., 

631,  638,  639,  640,  641,  645. 
Elam,  ex  parte,  152  Cal.,  406. 
Eldredge  v.  Trezevant,  160  U.  S.,  646. 
Elk  v.  Wilkins,  112  U.  S.,  357,  645. 
Ellis  v.  U.  S.,  206  U.  S.,  610,  640. 
Elmore  v.  Grymes,  I  Pet.,  241. 
Emert  v.  Missouri,  156  U.  S.,  616. 
Employers'  Liability  Cases,  207  U.  S.,  617. 
Erie  R.  R.  v.  Penn.   See  New  York,  L.  E.  & 

W.  R.  R.  v.  Penn. 
Essex  Public  Road  B'd  v.  Shinkle,  140  U.  S., 

623. 

Eustis  v.  Bolles,  150  U.  S.,  623,  627. 
Exchange  Bank  v.  Wiley,  195  U.  S.,  633. 

Fairfax  v.  Hunter,  I  Wheat.,  245. 
Fairhaven  &  W.  R.  R.  v.  New  Haven,  203 

U.  S.,  647. 
Fallbrook  Irr.  Dist  v.  Bradley,  164  U.  S., 

630,  646. 

Fargo  v.  Michigan,  121  U.  S.,  4i8n.,  616. 
Farmers'  &  Mechanics'  Bank  v.  Smith,  6 

Wheat.,  618,  621. 
Farrell  v.  O'Brien,  199  U.  S.,  631. 
Fauntleroy  v.  Lun,  210  U.  S.,  633. 
Felix  v.  Scharnweber,  125  U.  S.,  630. 
Felsenheld  v.  U.  S.,  186  U.  S.,  614. 
Felton  v.  University,  208  U.  S.,  624. 
Fenn  v.  Holme,  21  How.,  629. 
Ficklen  v.  Shelby  County,  145  U.  S.,  616. 
Fidelity  &  Deposit  Co.  v.  U.  S.,  187  U.  S., 

640. 
Fidelity  Mut.  Life  Ins.  Co.  v.  Clark,  203 

U.  S.,  641. 

Field  v.  Barber  Asphalt  Co.,  194  U.  S.,  617. 
v.  Clark,  143  U.  S.,  610,  613,  614,  625. 
Fielden  v.  Illinois,  143  U.  S.,  646. 
Finney  v.  Guy,  189  U.  S.,  632. 
Finsley  v.  Treat,  205  U.  S.,  632,  641. 
First  Nat.  Bk. v.  Kentucky,  9  Wall.,  615, 620. 
v.  Yankton    County,  101  U.  S.,  387, 

388. 

Fisk  v.  Jefferson,  116  U.  S.,  623. 
Fitts  v.  McGhee,  172  U.  S.,  642. 
Fleming  v.  Page,  9  How.,  386,  387. 
Fletcher  v.  Peck,  6  Cr.,  331,  332,  621,  720. 

v.  R.  L,  5  How.,  417,  614,  615. 
Fong  Yue  Ting  v.  U.  S.,  149  U.  S.,  267n., 

610,  620,  631,  635,  638,  639,  641. 
Foppiano  v.  Speed,  199  U.  S.,  617. 
Forsyth  v.  Hammond,  166  U.  S.,  642. 


Fort  Leavenworth  R.  R.  v.  Lowe,  114  U.  S., 

610,  619. 

Foster  v.  Davenport,  22  How.,  615,  635. 
v.  Neilson,  2  Pet.,  627,  635. 
v .  Wardens  of  New  Orleans,  94  U.  S., 

615. 

Fox  v.  Ohio,  5  How.,  229n.,  618,  639,  640. 
Francis  Wright,  the,  105  U.  S.,  631. 
Franklin  v.  So.  Carolina,  218  U.  S.,  648. 
Franklin  Branch  Bk.  v.  Ohio,  I  Black,  622. 
Frederick,  in  re,  149  U.  S.,  620,  646. 
Freeborn  v.  Smith,  2  Wall.,  631. 
Freeland  v.  Williams,  131  U.  S.,  623, 639, 645. 
French  ».  Barber  Asphalt  Pav.  Co.,  181  U.  S., 

639- 

Fretz  v.  Bull,  12  How.,  629. 
Fritts  v.  Palmer,  132  U.  S.,  616. 
Furman  v.  Nichol,  8  Wall.,  622. 

Gaines  v.  Fuentes,  92  U.  S.,  630. 
Galveston,  H.  &  S.  R.  R.  v.  Texas,  170  U.  S., 

624,  647. 
Galveston,  etc.,  R.  R.  v.  Texas,  210  U.  S., 

617. 
Garland,  ex  parte,  4  Wall.,  620/622,  627, 636, 

638. 

Garnett,  in  re,  141  U.  S.,  616,  630. 
Garrison  v.  New  York,  21  Wall.,  622. 
Gassies  v.  Ballon,  6  Pet.,  618,  633. 
Gatewood  v.  No.  Carolina,  203  U.  S.,  647. 
Geer  v.  Conn.,  161  U.  S.,  616. 
General  Oil  Co.,  v.  Grain,  209  U.  S.,  617. 
Genesee  Chief  v.  Fitzhugh,  12  How.,  337, 

419,  615,  629. 

Geofroy  v.  Riggs,  133  U.  S.  610,  627. 
Georgia  v.  Brailsford,  2  Dall.,  642. 

v.  Stanton,  6  Wall.,  630. 
German  Sav.  Bk.  v.  Dormitzer,  192  U.  S., 

633- 
Gibbons  v.  Dist.  of  Columbia,  1 16  U.  S.,  61 1. 

v.  Ogden,  9  Wheat.,  414, 416  and  n., 

419,  615,  625,  635. 
Gibson  v.  Chouteau,  13  Wall.,  634. 

v.  Mississippi,  162  U.  S.,  624,  646. 
Giles  v.  Harris,  189  U.  S.,  375. 
Gilfillan  v.  Union  Canal  Co.,  109  U.  S.,  623. 
Gilman  v.  Phila.,  3  Wall.,  615. 

v.  Sheboygan,  2  Black,  622,  639. 
Giozza  v.  Tiernan,  148  U.  S.,  646. 
Gladson  v.  Minnesota,  166  U.  S.,  616,  618, 

646. 

Glass  v.  The  Betsey,  3  Dall.,  629. 
Glenn  v.  Garth,  147  U.  S.,  632. 
Gloucester  Ferry  Co.  v.  Penn.,  1 14  U.  S.,  615. 
Gordon  v.  Appeal  Tax  Court,  3  How.,  622. 
Gould  v.  Gould,  78  Conn.,  407. 
Governor  of  Georgia  v.  Madrazo,  I  Pet.,  642. 
Grafton  v.  U.  S.,  206  U.  S.,  634,  640. 
Graham  v.  Folsom,  200  U.  S.,  624,  643. 
Grant  v.  Raymond,  6  Pet.,  618. 


XXX11 


TABLE  OF  CASES 


Grapeshot,  the,  9  Wall.,  627. 

Gray  v.  Conn.,  159  U.  S.,  646. 

Great  Falls  Mfg.  Co.  v.  Attorney-General, 

124  U.  S.,  639. 

Green,  in  re,  134  U.  S.,  611,  626,  643. 
Green  v.  Biddle,  8  Wheat.,  621,  625. 
v.  Van  Buskirk,  7  Wall.,  632. 
Green  Bay  &  Miss.  Canal  Co.  v.  Patten 

Paper  Co.,  172  U.  S.,  639. 
v.  Patten  Paper  Co.,  173  U.  S.,  634. 
Greenwood  v.  Union  Freight  Co.,  105  U.  S., 

623. 
Grenada  Lumber   Co.  v.  Mississippi,  217 

U.  S.,  648. 

Griffith  v.  Conn.,  218  U.  S.,  624,  648. 
Gulf,  C.  &  S.  F.  R.  R.  v.  Ellis,  165  U.  S., 

640. 

v.  Hefley,  158  U.  S.,  616,  635. 
Gundling  v.  Chicago,  177  U.  S.,  647. 
Gunn  v.  Barry,  15  Wall.,  622.. 
Gunter  v.  Atlantic  Coast  Line,  200  U.  S., 

624,  643. 

Gut  v.  Minnesota,  9  Wall.,  622. 
Guthrie  Nat.  Bk.  v.  Guthrie,  173  U.  S.,  242, 

641. 

Haddock  v.  Haddock,  201  U.  S.,  633. 
Hagar  v.  Reclamation  Dist.,  in  U.  S.,  645. 
Hagood  v.  Southern,  117  U.  S.,  642. 
Hairston  v.  Danville  &  W.  R.  R.,  208  U.  S., 

648. 

Hale  v.  Henkel,  201  U.  S.,  638,  640. 
Hall  v.  DeCuir,  95  U.  S.,  42411. 

v.  Wisconsin,  103  U.  S.,  623. 
Hallinger  v.  Davis,  146  U.  S.,  639,  640,  646. 
Halter  v.  Nebraska,  205  U.  S.,  647. 
Hamilton  v.  Dillin,  21  Wall.,  618,  627. 
Hamilton  Gas  Light  Co.  v.  Hamilton,  146 

U.  S.,  623. 
Hammond  Packing  Co.  v.  Arkansas,  212 

U.  S.,  624,  648. 

Hampton  v.  M'Connel,  3  Wheat.,  632. 
Hancock  Nat.  Bk.  v.  Farnum,  176  U.  S.,  632. 
Hanford  v.  Davies,  163  U.  S.,  624,  630. 
Hanley  v.  Donoghue,  116  U.  S.,  632. 
Hannibal  &  St.  J.  R.  R.  v.  Husen,  95  U.  S., 

625. 

v.  Missouri  R.  P.  Co.,  125  U.  S.,  630. 
Hanover  Nat.  Bank  v.  Moyses,  186  U.  S., 

618,  628,  639. 

Hans  v.  Louisiana,  134  U.  S.,  623,  630. 
Harding  v.  Harding,  198  U.  S.,  633. 
Harmon  v.  Chicago,  147  U.  S.,  625. 
Harris  v.  Balk,  198  U.  S.,  632. 
Haver  v.  Yaker,  9  Wall.,  635. 
Hawaii  v.  Mankichi,  190  U.  S.,  634,  639,  640. 
Hawker  v.  New  York,  170  U.  S.,  624. 
Hawthorne  v.  Calef,  2  Wall.,  622. 
Hayburn's  Case,  2  Dall.,  610,  629,  635. 
Hayes  v.  Missouri,  120  U.  S.,  645. 


Head  v.  Amoskeag  Mfg.  Co.,  113  U.  S.,645. 

v.  University,  19  Wall.,  622. 
Head  Money  Cases.  See  Edye  v.  Robertson. 
Heath  &  Milligan  Co.  v.  Worst.,  207  U.  S., 

648. 

Heff,  in  re,  197  U.  S.,  617,  642. 
Henderson  v.  New  York,  92  U.  S.,  615. 
Henderson  Bridge  Co.  v.  Henderson,   141 

U.  S.,  616,  623,  630,  647. 
Henly  v.  Myers,  215  U.  S.,  624. 
Hennington  v.  Georgia,  163  U.  S.,  616. 
Hepburn  v.  Ellzey,  2  Cr.,  619,  620,  629. 

v.  Griswold,  8  Wall.,  615,  619,  622, 

Hicks*.  U.S., '150  U.S.,  242. 

Hine,  the,  v.  Trevor,  4  Wall.,  629. 
Hinson  v.  Lott.,  8  Wall.,  614,  625. 
Hodges  v.  U.  S.,  203  U.  S.,  642, 644,  647,  650. 
Hodgson  v.  Bowerbank,  5  Cr.,  629. 
v.  Vermont,  168  U.  S.,  646. 
Holden  v.  Hardy,  169  U.  S.,  413,  647. 
v.  Joy,  17  Wall.,  627. 
v.  Minnesota,   137  U.  S.,  620,  623, 

639,  646. 
Hollingsworth  v.  Virginia,  3  Dall.,  246,  629, 

635,  641,  642. 

Holmes  v.  Jennison,  14  Pet.,  615,  620,  633. 
Holyoke  W.  P.  Co.  v.  Lyman,  15  Wall., 622. 
Home  of  the  Friendless  v.  Rouse,  8  Wall.,  622. 
Home  Ins.  Co.  v.  Augusta,  93  U.  S.,  622. 
v.  Morse,  20  Wall.,  630. 
v.  New  York,  134  U.  S.,  615,  646. 
Home  Savings  Bank  v.   Des  Moines,  205 

U.  S.,  615. 
Home  Tel.  &  Tel.  Co.  v.  Los  Angeles,  21 1 

U.  S.,  648. 
Hooker  v.  Burr,  194  U.  S.,  630. 

v.  Los  Angeles,  188  U.  S.,  630. 
Hooper  v.  California,  155  U.  S.,  616. 
Hope  Ins.  Co.  v.  Boardman,  5  Cr.,  629. 
Horn  Silver  Min.  Co.  v.  New  York,   143 

U.  S.,  616,  639,  646. 
Homer  v.  U.  S.,  143  U.  S.,  618,  620,  627,  635, 

638. 

Houston  v.  Moore,  5  Wheat.,  619. 
Houston  &  T.  C.  R.  R.  v.  Mayes,  201  U.  S., 

617,  624. 

Howard  v.  Bugbee,  24  How.,  622. 
v.  Fleming,  191  U.  S.,  630. 
v.  Kentucky,  200  U.  S.,  640,  641. 
Hudson  Water  Co.  v.  McCarter,  209  U.  S., 

624,  633,  648. 
Huling  v.  Kaw  Valley  R.  &  I.  Co.,  130  U.  S., 

639»  645. 

Humphrey  v.  Pegues,  16  Wall.,  622. 
Hunt  v.  Hunt,  131  U.  S.,  623. 
Hunter  v.  Pittsburg,  207  U.  S.,  624,  640,  647. 
Huntington  v.  Attrill,  146  U.  S.,  632. 
Hurtado  v.  California,  no  U.  S.,  80,  81,  235, 

236,  368,  645. 


TABLE  OF  CASES 


XXXI 11 


Huse  v.  Glover,  119  U.  S.,  616,  625. 

Huus  v.  New  York  &  P.  R.  SS.  Co.,  182 

U.  S.,  4i8n. 

Hyde  v.  Stone,  20  How.,  629. 
Hylton  v.  U.  S.,  3  Dall.,  614. 

Illinois  Cent.  R.  R.  v.  Adams,  180  U.  S.,  642. 
v.  Illinois,  146  U.  S.,  623. 
v.  Illinois,  163  U.  S.,  616. 
v.  Kentucky,  218  U.  S.,  648. 
Income  Tax  Cases.  See  Pollock  v.  Farmers' 

L.  &  T.  Co. 

Inglis  v.  Sailors'  S.  H.,  3  Pet.,  626. 
Inman  SS.  Co.  v.  Tinker,  94  U.  S.,  625,  642. 
Insular  Tariff  Cases,  266,  267, 388, 389.  And 
see  De  Lima  v.  Bid  well,  Dooley  v.  U.  S., 
Downes  v.  Bidwell. 
International    Mercantile    Marine    Co.    v. 

Stranahan,  214  U.  S.,  617. 
Interstate  Com.  Com.  v.  Baird,  194  U.  S., 

638,  640. 
v.  Baltimore   &  O.  R.  R.,  145  U.  S., 

421,  422,  616. 
v.  Brimson,  154  U.  S.,  630,  638,  639, 

646. 
v.  Chicago  &  Alton  R.  R.,  215  U.  S., 

617. 
v.  Cincinnati,  N.  O.  &  T.  P.  R.  R., 


167  U.  S.,  422,  423, 

t.  R.  R., 
648. 


v.  Illinois  Cent. 


215  U.S.,  617, 


Interstate  Ry.  Co.  v.  Mass.,  207  U.  S.,  648. 
Iowa  Cent.  R.  R.  v.  Iowa,  160  U.  S.,  646. 
Irvine  w.  Marshall,  20  How.,  629. 
Israel  v.  Arthur,  152  U.  S.,  623. 

Jack  v.  Kansas,  199  U.  S.,  638,  640,  641,  642. 
Jackson  ex  dem.  Hart  v.  Lampshire,  3  Pet., 

621. 

ackson  v.  Twentyman,  2  Pet.,  629. 
acobson  v.  Mass.,  197  U.  S.,  610,  631,  643. 
aehne  v.  New  York,  128  U.  S.,  623. 
ames  v.  Bowman,  190  U.  S.,  650. 
apanese  Immigrant  Case.    See  Yamataya 

v.  Fisher. 

Jaster  v.  Currie,  198  U.  S.,  633. 
Jefferson  Branch  Bk.  v.  Shelly,  I  Black,  622. 
John  Hancock  Mut.  Life  Ins.  Co.  v.  Warren, 

181  U.  S.,  642. 
Johnson  v.  Chicago  &  Pac.  Elev.  Co.,  119 

U.  S.,  621. 
v.  New  York  Life  Ins.  Co.,  187  U.  S., 

632. 

v.  Sayre,  158  U.  S.,  639. 
Joint  Traffic  Assoc.  Case.  See  U.  S.  v.  Joint 

Traffic  Assoc. 

Jones  v.  Brim,  165  U.  S.,  646. 
v.  Craig,  127  U.  S.,  630. 
v.  League,  18  How.,  629. 
v.  U.  S.,  137  U.  S.,  630,  634,  640. 


Jones  v.  Van  Zandt,  5  How.,  265n.,  634. 
Juilliard  v.  Greenman,  no  U.  S.,  614,  615, 

620,  639. 
Justices  v.  Murray,  9  Wall.,  631,  641. 

Kaine,  in  re,  14  How.,  631. 
Kansas  v.  Colorado,  185  U.  S.,  630,  642. 
v.  Colorado,  206  U.  S.,  642. 
v.  U.  S.,  204  U.  S.,  631. 
Karstendick,  in  re,  93  U.  S.,  620. 
Kauffman  v.  Wooters,  138  U.  S.,  646. 
Kaukauna  W.  P.  Co.  v.  G.  B.  &  Miss.  Canal 

Co.,  142  U.  S.,  639,  646. 
Kearney,  ex  parte,  7  Wheat.,  620,  629,  631, 

640. 

Keerl  v.  Montana,  213  U.  S.,  648. 
Keith  v.  Clark,  97  U.  S.,  622. 
Kemmler,  in  re,  136  U.  S.,  243,  641,  646. 
Kendall  ».  U.  S.,  12  Pet.,  619,  628. 
Kennard  v.  Louisiana,  92  U.  S.,  649. 
Kennett  v.  Chambers,  14  How.,  635. 
Kentucky  v.  Dennison,  24  How.,  629,  633. 
Kentucky  R.  R.  Tax  Cases.  See  Cincinnati, 

N.  O.  &  T.  P.  R.  R.  v.  Kentucky. 
Keokuk  N.  L.  Packet  Co.  v.  Keokuk,  95 

U.  S.,  625. 

Kepner  v.  U.  S.,  195  U.  S.,  640. 
Kidd  v.  Pearson,  128  U.  S.,  616,  645. 
Kidd  D.  &  R.  Co.  v.  Musselman  Grocer  Co., 

217  U.  S.,  648. 

Kies  v.  Lowrey,  199  U.  S.,  624. 
Kilbourn  v.  Thompson,  103  U.  S.,  612,  613. 
Kimmish  v.  Ball,  129  U.  S.,  427,  633. 
King  v.  Mullins,  171  U.  S.,  647. 
Klinger  v.  Missouri,  13  Wall.,  620. 
Knowlton  v.  Moore,  178  U.  S.,  614. 
Knoxville  v.  Knoxville  Water  Co.,  212  U.  S., 

648. 
Knoxville  Water  Co.  v.  Knoxville,  200  U.  S., 

624. 

Kohl  v.  U.  S.,  91  U.  S.,  619,  639. 
Kreiger  v.  Shelby  R.  R.,  125  U.  S.,  630. 
Kring  o.  Missouri,  107  U.  S.,  623. 

La  Abra  Silver  Min.  Co.  v.  U.  S.,  175  U.  S., 

614,  630. 

Laing  v.  Rigney,  160  U.  S.,  632,  646. 
Lake  Shore  &  M.  S.  R.  R.  v.  Ohio,  173  U.  S., 

617. 

v.  Smith,  173  U.  S.,  647. 
Lamar  v.  Browne,  92  U.  S.,  618,  627. 
Lane  County  v.  Oregon,  7  Wall.,  610. 
Lang  v.  New  Jersey,  209  U.  S.,  648. 
Langdeau  v.  Hanes,  21  Wall.,  265n. 
Lange,  ex  parte,  18  Wall.,  620,  632,  639. 
Langford  v.  U.  S.,  101  U.  S.,  610. 
Lascelles  v.  Ga.,  148  U.  S.,  610,  633. 
Laurel  Hill  Cem.  v.  San  Francisco,  216  U.  S., 

648. 
Lawton  t;.  Steele,  152  U.  S.,  630,  646. 


XXXIV 


TABLE  OF  CASES 


Leach  v.  Money,  19  State  Trials,  234. 

Lee  v.  New  Jersey,  207  U.  S.,  617,  631,  648. 

Leeper  v.  Texas,  139  U.  S.,  646. 

Lees  v.  U.  S.,  150  U.  S.,  620,  646. 

Legal  Tender  Case.  See  Juilliard  v.  Green- 
man,  and  Parker  v.  Davis. 

Lehigh  Valley  R.  R.  v.  Penn.,  145  U.  S.,  616. 

Lehigh  Water  Co.  v.  Easton,  121  U.  S.,  623. 

Leisy  v.  Hardin,  135  U.  S.,  418,  428,  616, 
633,  642,  646. 

Leitensdorfer  v.  Webb,  20  How.,  626. 

Leloup  v.  Mobile,  127  U.  S.,  419,  614,  616. 

Lemieux  v.  Young,  21 1  U.  S.,  648. 

Lennon,  in  re,  150  U.  S.,  630,  639. 

Lent  v.  Tillson,  140  U.  S.,  646. 

Leonard  v.  Vicksburg  S.  &  P.  R.  R.,  198 
U.  S.,  631. 

Lewis  v.  U.  S.,  146  U.  S.,  236. 

L'Hote  v.  New  Orleans,  177  U.  S.,  647. 

License  Cases,  The.  See  Thurlow  v.  Massa- 
chusetts, Fletcher  ».  Rhode  Island,  Peirce 
t>.  New  Hampshire. 

License  Tax  Cases,  5  Wall.,  614,  620,  625. 

Lincoln  County  v.  Luning,  133  U.  S.,  630, 
642. 

Lindsay  &  P.  Co.  v.  Mullen,  176  U.  S.f  617. 

Linford  v.  Ellison,  155  U.  S.,  639. 

Ling  Su  Pass  v.  U.  S.,  218  U.  S.,  648. 

Little  v.  Barreme,  2  Cr.,  333. 

Liverpool  Ins.  Co.  v.  Mass.,  10  Wall.,  615, 

633. 

Livingston  v.  Moore,  7  Pet.,  641. 
Locke  v.  New  Orleans,  4  Wall.,  620,  622. 
Loewe  v.  Lawler,  208  U.  S.,  444. 
Logan  v.  U.  S.,  144  U.  S.,  610,  620. 
Londoner  v.  Denver,  210  U.  S.,  648. 
Lone  Wolf  v.  Hitchcock,  187  U.  S.,  636,  639. 
Loney,  in  re,  134  U.  S.,  612. 
Longyear  v.  Toolan,  209  U.  S.,  648. 
Lottawanna,  the,  21  Wall.,  615,  630. 
Loughborough  v.  Blake,  5  Wheat.,  614,  619. 
Louisiana  v.  Mississippi,  202  U.  S.,  634. 
v.  New  Orleans,  215  U.  S.,  624. 
v.  Texas,  176  U.  S.,  630,  631,  642. 
Louisiana  ex  rel.  Folsom  v.  New  Orleans,  109 

U.  S.,  623,  645. 
Louisiana  ex  rel.  Ranger  v.  New  Orleans,  102 

U.  S.,  623. 

Louisiana  ex  rel.  Nelson  v.  St.  Martin's  Par- 
ish, in  U.  S.,  623. 
Louisiana  ex  rel.  New  G.  &  I.  Co.  v.  Steele, 

134  U.  S.,  623,  630. 
Louisville  &  J.  Ferry  Co.  v.  Kentucky,  188 

U.  S.,  617. 
Louisville  &  N.  R.  R.  v.  Central  Stockyards 

Co.,  212  U.  S.,  648. 
v.  Deer,  200  U.  S.,  633. 
v.  Eubank,  184  U.  S.,  617. 
v.  Gaston,  216  U.  S.,  648. 
v.  Kentucky,  161  U.  S.,  425,  426. 


Louisville  &  N.  R.  R.  v.  Ky.,  183  U.  S.,  617. 
v.  Milton,  218  U.  S.,  648. 
v.  Schmidt,  177  U.  S.,  647. 
v.  Woodson,  134  U.  S.,  645. 
Louisville,  C.  &  C.  R.  R.  v.  Letson,  2  How., 

629. 
Louisville  Gas  Co.  v.  Citizens'  Gas  Co.,  115 

U.  S.,  623. 
Louisville,  N.  O.  &  T.  R.  R.  v.  Mississippi, 

133  U.  S.,  424,  616. 

Louisville  Water  Co.  v.  Clark,  143  U.  S.,  623. 
Lowe  i>.  Kansas,  163  U.  S.,  81,  366,  646. 
Lucy,  the,  8  Wall.,  631. 
Luther  v.  Borden,  7  How.,  619,  620, 628, 629, 

635. 
Luxton  v.  No.  River  Bridge  Co.,  153  U.  S., 

616,  620. 
Lyng  v.  Michigan,  135  U.  S.,  616. 

McAlister  v.  Henkel,  201  U.  S.,  640. 
McAllister  v.  U.  S.,  141  U.  S.,  628. 
McCall  v.  California,  136  U.  S.,  41811.,  616. 
McCardle,  ex  parte,  6  Wall.,  631. 
McCardle,  ex  parte,  7  Wall.,  620,  631. 
McChord  v.  Louisville  &  N.  R.  R.,  183  U.  S., 

617. 

McClean  v.  Arkansas,  211  U.  S.,  648. 
McClellan  v.  Chipman,  164  U.  S.,  636. 
McCracken  v.  Hay  ward,  2  How.,  622. 
McCray  v.  U.  S.,  195  U.  S.,  640,  642. 
McCready  v.  Virginia,  94  U.  S.,  633. 
McCulloch  v.  Maryland,  4  Wheat.,  245,  311, 

335,  336, 432,  610,  614,  619,  625,  634,  635, 

642. 

McCullough  v.  Virginia,  172  U.  S.,  624,  631. 
McDonald  v.  Mass.,  180  U.  S.,  624,  641. 
M'Elmoyle  v.  Cohen,  13  Pet.,  632. 
McElrath  v.  U.  S.,  102  U.  S.,  241,  641. 
McElvaine  v.  Brush,  142  U.  S.,  229,  641,  646. 
McGuire  v.  Mass.,  3  Wall.,  614. 
McHenry  v.  Alford,  168  U.  S.,  646. 
McKane  v.  Durston,  153  U.  S.,  633,  646. 
McMillan  v.  M'Neill,  4  Wheat.,  617,  618, 

621. 

McNeill  v.  So.  R.  R.,  202  U.  S.,  643. 
McNichols  v.  Pease,  207  U.  S.,  620,  633. 
McNiel,  ex  parte,  13  Wall.,  615. 
McNulty  v.  Cal.,  149  U.  S.,  646. 
McPherson  v.  Blacker,  146  U.  S.,  372,  626, 

646,  649,  650. 

Mackin  v.  U.  S.,  117  U.  S.,  639. 
Mager  v.  Grima,  8  How.,  615,  625. 
Magoun  v.  Illinois  Trust  &  Sav.  Bk.,  170 

U.  S.,  647. 

Mahon  v.  Justice,  127  U.  S.,  633,  642. 
Maine  v.  Grand  Trunk  R.  R.  Co.,  142  U.  S., 

616. 

Mallett  v.  No.  Carolina,  181  U.  S.,  624,  631. 
Manchester  v.  Mass.,  139  U.  S.,  616,  630, 

642. 


TABLE  OF  CASES 


xxxv 


Mangan  v.  State,  76  Ala.,  10511. 
Manigault  v.  Springs,  199  U.  S.,  624. 
Manning,  in  re,  139  U.  S.,  646. 
Manning  v.  French,  133  U.  S.,  639,  641. 
Manufacturers'  Gas  Co.v.  Indiana  Gas  Co., 

155  Ind.,  406. 
Marbury  v.  Madison,  I  Cranch,  153,  331, 

332,  333,  627,  628,  629.  631,  635. 
Marchant  v.  Penn.  R.  R.,  153  U.  S.,  646. 
Marshall  v.  Baltimore  &  O.  R.  R.,  16  How., 

629. 
Martin  v.  Dist.  of  Col.,  205  U.  S.,  640. 

v.  Hunter,   i  Wheat.,  625,  629,  631, 

642. 

v.  Mott,  12  Wheat.,  619. 
v.  Pittsburg  &  L.  E.  R.  R.,  203  U.  S., 

617,  618.  647. 

v.  Texas,  200  U.  S.,  632,  641. 
v.  Waddell,  16  Pet.,  19,  380. 
Marvin  v.  Trout,  199  U.  S.,  632,  640,  641. 
Maryland,  use  of  Washington   County,  v. 

Baltimore  &  Ohio  R.  R.,  3  How.,  622. 
Mason  v.  Haile,  12  Wheat.,  621. 

v.  Missouri,  179  U.  S.,  647. 
Matthews  v.  Zane,  7  Wheat.,  629. 
Mattox  v.  U.  S.,  156  U.  S.,  238,  240,  610, 

640. 
Maxwell  v.  Dow,  176  U.  S.,  236,  368,  369, 

647. 

May  v.  New  Orleans,  178  U.  S.,  625. 
Mayfield  ».  Richards,  115  U.  S.,  618. 
Mayhew  v.  Thatcher,  6  Wheat.,  632. 
Maynard  v.  Hill,  125  U.  S.,  623. 
Mechanics'  &  Traders'  Bk.  v.  Union  Bk.,  22 

Wall.,  627. 

Medley,  pet'r,  134  U.  S.,  623. 
Memphis  &  C.  R.  R.  v.  Tenn.,  101  U.  S.,  622. 
Messenger  v.  Mason,  10  Wall.,  26sn. 
Meyer  v.  Richmond,  172  U.  S.,  630,  647. 
Milburn,  ex  parte,  9  Pet.,  620. 
Millard  v.  Roberts,  202  U.  S.,  613. 
Miller  v.  New  York,  15  Wall.,  622. 
v.  Texas,  153  U.  S.,  229n. 
v.  U.  S.,  ii  Wall.,  618,  639,  640. 
Milligan,  ex  parte,  4  Wall.,  620,  629,  631, 

638,  639,  640. 

Mills  v.  Duryee,  7  Cr.,  632. 
Minneapolis  v.  Minn.  Str.  Ry.,  215  U.  S.,  624. 
Minneapolis  &  St.  L.  R.  R.  v.  Beckwith,  129 

U.  S.,  358,  645. 
v.  Emmons,  149  U.  S.,  646. 
v.  Herrick,  127  U.  S.,  645. 
v.  Minnesota,  186  U.  S.,  617. 
v.  Minnesota,  193  U.  S.,  640. 
Minneapolis  Eastern  R.  R.  v.  Minnesota, 

134  U.  S.,  623. 
Minnesota  v.  Barber,  136  U.  S.,  616,  633. 

v.  No.  Securities  Co.,  194  U.  S.,  617, 

630,  633. 
Minor  v.  Happersett,  21  Wall.,  373, 374, 649. 


Mississippi  v.  Johnson,  4  Wall.,  628,  629. 
Mississippi  Railroad  Com.  v.  Illinois  Cent. 

R.  R.,  203  U.  S.,  617,  643. 
Mississippi  &  M.  R.  R.  v.  McClure,  10  Wall., 

622. 

v.  Rock,  4  Wall.,  622. 
Missouri  v.  Illinois,  180  U.  S.,  630. 

v.  Lewis,  101  U.  S.,  645. 
Missouri,  K.  &  T.  R.  R.  v.  Haber,  169  U.  S., 

616,  636,  642. 
v.  McCann,  174  U.  S.,  617, 
Missouri  Pac.  R.  R.  v..  Kansas,  216  U.  S., 

624,  648. 

v.  Mackey,  127  U,  S..,  645. 
v.  Nebraska,,  164  U.  S.,  646,  648. 
Mitchell  v.  Harmony,  13  How.,  639. 
Mobile  &  Ohio  R,  R.  v.  Tennessee,  153  U.  S., 

623,  631. 

Mobile  Transp.  Co.  v.  Mobile,  187  U.  S.,  630. 
Moffit  v.  Kelly,  218  U.  S.,  624. 
Mogul  SS.  Co.  v.  McGregor,  L.  R.  23  Q.  B., 

435- 
Monongahela  Bridge  Co.  v.  U.  S.,  216  U.  S., 

617. 
Monongahela  Nav.  Co.  v.  U.  S.,  148  U.  S., 

Montague  v.  Lowry,  193  U.  S.,  444, 450, 617. 
Montana  Co.  v.  St.  Louis  Min.  Co.,  152 

U.  S.,  646. 

Montello,  the,  n  Wall.,  615. 
Montgomery  v.  Portland,  190  U.  S.,  617. 
Moore  P.  Illinois,  14  How.,  633,  634,  639. 

v.  Missouri,  159  U.  S.,  646. 
Moran,  in  re,  203  U.  S.,  640. 
Moran  v.  New  Orleans,  112  U.  S.,  615. 
Morewood  v.  Enequist,  23  How.,  629. 
Morgan's  Louisiana  &  T.  R.  &  S.  S.  Co.,  118 

U.  S.,  615,  621,  625. 
Morley  v.  Lake  Shore  &  M.  S.  R.  R.,  146 

U.  S.,  623,  646. 
Mormon  Church  v.  U.  S.    See   Church    of 

Jesus  Christ  of  Latter-Day  Saints  v.  U.  S. 
Morris  v.  Columbus,  102  Ga.,  407. 

v.  Hitchcock,  194  U.  S.,  638,  640. 
Morton  v.  Nebraska,  21  Wall.,  265n. 
Moses  Taylor,  the,  4  Wall.,  629. 
Mossman  v.  Higginson,  4  Dall.,  629. 
Motes  v.  U.  S.,  178  U.  S.,  238,  620,  630,  640. 
Moultrie  County  r.  Rockingham  Bank,  92 

U.  S.,  622. 

Mozer  v.  Peabody,  212  U.  S.,  648. 
Mugler  v.  Kansas,  123  U.  S.,  427,  639. 
Muller  v.  Dows,  94  U.  S.,  630. 

v.  Oregon,  208  U.  S.,  610,  648. 
Mulligan  v.  Corbin,  7  Wall.,  622. 
Mumma  v.  Potomac  Co.,  8  Pet.,  621. 
Munn  v.  Illinois,  94  U.  S.,  42in,  424,  425, 

621,  649. 

Munsey  v.  Clough,  196  U.  S.,  633. 
Murdock  v.  Memphis,  20  Wall.,  631. 


XXXVI 


TABLE  OF  CASES 


Murray  v.  Charleston,  96  U.  S.,  622. 

v.  Hoboken  L.  &  I.  Co.,  18  How.,  77, 
78,  236,  237,  364,  365,  628,  629, 
638,  639. 

Nashville  Co.  &  St.  L.  R.  R.  v.  Alabama,  128 

U.  S.,  631,  634,  645. 
Nathan  v.  Louisiana,  8  How.,  615. 
National  Council  v.  State  Council,  203  U.  S., 

624,  647. 
National  Mut.  Bldg.  &  Loan  Assoc.  v.  Bra- 

han,  193  U.  S.,  633. 
Neagle,  in  re,  135  U.  S.,  610,  620,  628,  631, 

635. 

Neal  v.  Delaware,  103  U.  S.,  650. 
Neely  v.  Henkel,  180  U.  S.,  620,  634. 
Neil  v.  Ohio,  3  How.,  622. 
Nelson  v.  U.  S.,  201  U.  S.,  640. 
Neves  v.  Scott,  13  How.,  629. 
New  England  M.  Ins.  Co.  v.  Dunham,  u 

Wall.,  630. 

New  Hampshire  v.  La.,  108  U.  S.,  247,  642. 
New  Jersey  v.  New  York,  5  Pet.,  629,  631. 

v.  Wilson,  7  Cr.,  621. 
New  Mexico  ex  rel.  McLean  v.  Denver  &  R. 

G.  R.  R.,  203  U.  S.,  617,  625. 
New  Orleans  v.  Benjamin,  153  U.  S.,  623. 
v.  DeArmas,  9  Pet.,  627,  629. 
v.  N.  O.  Water  W'ks,  142  U.  S.,  623, 

639,  646. 
New  Orleans  C.  &  L.  R.  R.  v.  New  Orleans, 

143  U.  S.,  623. 
New  Orleans  Gas  Co.  v.  La.  Light  Co.,  115 

U.  S.,  623. 
New  Orleans  Water  Works  v.  La.  Sug.  Refin. 

Co.,  125  U.  S.,  623,  630. 
v.  Rivers,  115  U.  S.,  623. 
New  York  v.  Hesterberg,  211  U.  S.,  648. 
v.  Louisiana,  108  U.  S.,  247. 
v.  Miln,  ii  Pet.,  615. 
New  York  ex  rel.  N.  Y.  Clearing  House 

Bldg.  v.  Barker,  179  U.  S.,  647. 
New  York  ex  rel.  Schurz  v.  Cook,  148  U.  S., 

623. 
New  York  ex  rel.  Cutler  v.  Dibble,  21  How., 

635. 
New  York  ex  rel.  Penn.  R.  R.  v.  Knight,  192 

U.  S.,  426. 
New  York  ex  rel.  Hatch  v.  Reardon,  204 

U.  S.,  617,  647. 
New  York  ex  rel.  Parke  D.  &  Co.  v.  Roberts, 

171  U.  S.,  616,  647. 
New  York  ex  rel.  N.  Y.  Elec.  Co.  v.  Squire, 

145  U.  S.,  623,  646. 
New  York  ex  rel.  Met.  Str.  Ry.  v.  Tax  Com., 

199  U.  S.,  624. 
New  York  C.  &  H.  R.  R.  v.  U.  S.,  212  U.  S., 

648. 

New  York  G.  &  I.  Co.  v.  Board  of  Liquida- 
tion, 105  U.  S.,  623. 


New  York,  L.  E.  &  W.  R.  R.  v.  Penn.,  153 

U.  S.,  616,  620,  623. 
v.  Penn.,  158  U.  S.,  616. 
New  York,  N.  H.  &  H.  R.  R.  v.  New  York, 

165  U.  S.,  616. 

Nicol  v.  Ames,  173  U.  S.,  614,  617,  621. 
Nishimura  Ekiu  v.  U.  S.,  142  U.  S.,  616,  618, 

619. 

Nobles  v.  Georgia,  168  U.  S.,  646. 
Norfolk&  West.  R.R.v.  Penn.,  136  U.S.,  616. 
Norris  v.  Boston,  7  How.,  418. 
North  American  C.  S.  Co.  v.  Chicago,  211 

U.  S.,  648. 

No.  Carolina  v.  Temple,  134  U.  S.,  623. 
Northern  Assoc.  Co.  v.  Grand  Bldg.  Assoc., 

203  U.  S.,  633. 
Northern  Pac.  R.  R.  v.  Duluth,  208  U.  S., 

624,  648. 
Northern  Securities  Co.  v.  U.  S.,  193  U.  S., 

298,  439-441,  444,  449- 
Northwestern  Life  Ins.  Co.  v.  Riggs,  203 

U.  S.,  647. 
Northwestern  Union  Packet  Co.  v.  St.  Louis, 

100  U.  S.,  615,  621,  625. 
Norwich  &  W.  R.  R.  v.  Johnson,  15  Wall., 

620,  622. 

Norwood  v.  Baker,  172  U.  S.,  639. 
Nutting  v.  Mass.,  183  U.  S.,  617. 

Oceanic  Steam  Nav.  Co.  v.  Stranahan,  214 

U.  S.,  617. 
Ochiltree  v.  Iowa  R.  Contracting  Co.,  21 

Wall.,  622. 
Offield  v.  New  York,  N.  H.  &  H.  R.  R., 

203  U.  S.,  624. 

Ogden  v.  Saunders,  12  Wheat.,  618,  620,  621. 
Ohio  v.  Thomas,  173  U.  S.,  619,  636. 
Ohio  ex  rel.  Lloyd  v.  Dollison,  194  U.  S.,  640. 
Ohio  &  Miss.  R.  R.  ».  Wheeler,  I  Black,  629. 
Ohio  Oil  Co.  v.  Indiana,  177  U.  S.,  406,  647. 
Old  Wayne  Life  Assoc.  v.  McDonough,  204 

U.  S.,  633,  647. 

Olsen  v.  Smith,  195  U.  S.,  617. 
O'Neil  v.  Vermont,  144  U.  S.,  641. 
Ong  Chang  Wing  v.  U.  S.,  218  U.  S.,  648. 
Ontario  Land  Co.  v.  York,  212  U.  S.,  648. 
Orient  Ins.  Co.  v.  Daggs,  172  U.  S.,  647. 
Original  Package  Cases.  SeeLeisyv.  Hardin. 
Osborn  i>.  Bank  of  the  U.  S.,  9  Wheat.,  614, 

628,  629,  642. 
v.  Nicholson,    13  Wall.,   253n.,  346, 

622,  639,  644. 
Osborne  v.  Florida,  164  U.  S.,  616. 

v.  Mobile,  16  Wall.,  615. 
Ouachita  Packet  Co.  v.  Aiken,  121  U.  S., 

616,  625,  642. 

O  wings  v.  Norwood,  5  Cr.,  629. 
v.  Speed,  5  Wheat.,  621. 
Ozan  Lumber  Co.  v.  Union  County  Bk.,  207 

U.  S.,  648. 


TABLE  OF  CASES 


xxxvn 


Pace  v.  Burgess,  92  U.  S.,  621. 

Pacific  Ex.  Co.  v.  Seibert,  142  U.  ,S.,  616, 


Paci 


623,  646, 

ific  R.  R. 
622. 


Co.  v.   Maguire,  20  Wall., 


Pacific  R.  R.  Removal  Cases,  115  U.  S., 

42on. 

Paddell  v.  New  York,  211  U.  S.,  648. 
Palmer  v.  McMahon,  133  U.  S.,  639. 
Pargoud  v.  U.  S.,  13  Wall.  627. 
Parker  v.  Davis,  12  Wall.,  615,  620,  622. 
Parkinson  v.  U.  S.,  121  U.  S.,  639. 
Parks,  ex  parte,  93  U.  S.,  620. 
Parsons  v.  Bedford,  3  Pet.,  241,  641. 
Parsons  v.  U.  S.,  167  U.  S.,  627.    • 
Passaic  Bridges,  the,  3  Wall.,  615. 
Passenger  Cases,  the.  See  Smith  v.  Turner, 

Norris  v .  Boston. 
Patapsco  Guano  Co.  v.  Board  of  Agriculture, 

171  U.  S.,  426,  427,  616,  625. 
Patterson  v.  Colorado,  205  U.  S.,  647. 

v.  The  Eudora,  190  U.  S.,  617,  630. 
v.  Winn,  5  Pet.,  627. 
Patton  v.  Brady,  184  U.  S.,  630. 
Paul  v.  Virginia,  8  Wall.,  615,  632,  633,  649. 
Paulsen  v.  Portland,  149  U.  S.,  646. 
Paup  v.  Drew,  10  How.,  622. 
Payne  v.  Hook,  7  Wall.,  630. 
Pearce  v.  Texas,  155  U.  S.,  633,  639,  646. 
Pearson  v.  Yewdall,  95  U.  S.,  641. 
Peete  v.  Morgan,  19  Wall.,  615,  625. 
Peirce  v.  New  Hampshire,  5  How.,  417,  418, 

614,  615. 
Pembina  Con.  Silver  Mining  Co.  v.  Pa.,  125 

U.  S.,  359,  633,  645,  661. 
Pennie  v.  Reis,  132  U.  S.,  645. 
Pennoyer  v.  McConnaughy,  140  U.  S.,  623, 

642. 
Pennyslvania  v.  Quicksilver  Min.  Co.,   10 

Wall.,  631. 
v.  Wheeling  &  B.  Bridge  Co.,  13  How., 

615,  629,  631,  641. 
v.  Wheeling  &     B.   Bridge   Co.,    18 

How.,  265n.,  615,  618,  621. 
Pennsylvania  College  Cases,  13  Wall.,  622. 
Pennsylvania  R.  R.  v.  Knight,  192  U.  S.,  617. 

v.  Miller,  132  U.  S.,  623. 
Penniman's  Case,  103  U.  S.,  623. 
Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co., 

96  U.  S.,  419,  615. 
People  (New  York)  v.  Comp.  Gen.  Trans., 

107  U.  S.,  625. 
People  v.  Williams  Engineering  Co.,  85  N. 

E.  Rep.,  407. 
Pervear  v.  Massachusetts,  5  Wall.,  243,  614, 

641. 

Pettibone  v.  Nichols,  203  U.  S.,  633. 
Philadelphia  v.  Collector,  5  Wall.,  629. 
Philadelphia  &  R.  R.  R.  v.  Penn.,  15  Wall., 

423,  615. 


Philadelphia  &  So.  S.  S.  Co.  v.  Penn.,  122 

U.  S.,  616. 
Philadelphia  Fire  Assoc.  ».  New  York,  119 

V-  S.,  359, 645. 

Phillips  v.  Payne,  92  U.  S.,  619. 
Pickard  v.  Pullman  So.  Car  Co.,  117  U.  S., 

615. 
Pierce  v.  Carskadon,  16  Wall.,  620. 

v.  Creecy,  210  U.  S.,  633. 
Pittsburg  &  So.  Coal  Co.  v.  Bates,  156  U.  S., 

616,  621,  625,  633. 
v.  Louisiana,  156  U.  S.,  616,  623,  625, 

639,  646. 
Pittsburg  C.  C.  &  St.  L.  R.  R.  v.  Backus, 

154  U.  S.,  639,  646. 
Planters'  Bank  v.  Sharp,  6  How.,  622. 
Plessy  v.  Ferguson,  163  U.  S.,  346,  356,  426, 

644,  646. 

Plumley  v.  Mass.,  155  U.  S.,  616. 
Polk  v.  Mutual  R.  F.  Assoc.,  207  U.  S.,  624, 

647. 

Pollard  v.  Hagan,  3  How.,  634. 
Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157 
U.S., 611,614, 621,  627,628,642. 
v.  Farmers'  Loan  &  Trust  Co.,  158 

U.  S.,  611. 

Ponce  v.  Roman  Cath.  Ch.,  210  U.  S.,  634. 
Poole  v.  Fleeger,  II  Pet.,  625. 
Pope  v.  Williams,  193  U.  S.,  373. 
Postal  Tel.  Cable  Co.  v.  Adams,  155  U.  S., 

616. 

v.  Charleston,  153  U.  S.,  616,  620. 
v.  Taylor,  192  U.  S.,  617. 
Powell  v.  Penn.,  127  U.  S.,  406,  645. 
Powers  v.  Detroit,  G.  H.  &  M.  R.  R.,  201 

U.  S.,  624. 
Presser  v.  Illinois,  116  U.  S.,  233,  619,  638, 

645. 

Prigg  v.  Penn.,  16  Pet.,  629,  634. 
Prize  Cases,  2  Black,  338,  339,  342. 
Propeller  Commerce,  the,  I  Black,  629. 
Prout  v.  Starr,  188  U.  S.,  610,  642. 
Providence  Bank  v.  Billings,  4  Pet.,  621. 
Providence  Inst.  v.  Jersey  City,  113  U.  S., 

645- 
Public  Clearing  House  v.  Coyne,  194  U.  S., 

618,  638,  640. 

Pullman  Co.  v.  Adams,  189  U.  S.,  426. 
v.  Hayward,  141  U.  S.,  616. 
v.  Penn.,  141  U.  S.,  616. 
Pumpelly  v.  Green  Bay  Co.,  13  Wall.,  639. 

Quarles  &  Butler,  in  re,  158  U.  S.,  610,  635, 
646. 

Rahrer,  in  re,  140  U.  S.,  616. 

Ramsdell  Transp.  Co.  v.  La  Cie  Generate 

Transatlantique,  182  U.  S.,  4i8n. 
Randall  v.  Baltimore  &  O.  R.  R.,  109  U.  S., 

242. 


XXXV111 


TABLE  OF  CASES 


Rapier, in're,  143  U.  S.,  230  and  n.,23i,  618, 

638. 
Rasmussenp.  Idaho,  181  U.  S.,  617. 

v.  U.  S.,  197  U.  S.,  634,  640,  641. 
Ratterman  v.  Western  Union  Tel.  Co.,  127 

U.  S.,  614. 
Raymond  v.  Chicago  Traction  Co.,  207  U.  S., 

648. 
Reagan  v.  Farmers'  L.  and  T.  Co.,  154  U.  S., 

422,  425n.,  642,  646. 
v.  Merc.  Trust  Co.,  154  U.  S.,  642, 

646. 

Rearick  v.  Penn.,  203  U.  S.,  617. 
Reetz  v.  Michigan,  188  U.  S.,  624. 
Reggel,  ex  parte,  114  U.  S.,  633. 
Reid  v.  Colorado,  187  U.  S.,  617. 
Renaud  v.  Abbott,  116  U.  S.,  632. 
Rex  v.  Wilkes,  4  Burr.,  234n. 
Reymann  Brewing  Co.  v.  Brister,  179  U.  S., 

617,  633. 
Reynolds  v.  Stockton,  140  U.  S.,  632. 

v.  U.  S.,  98  U.  S.,  638. 
Rhode  Island  v.  Mass.,  12  Pet.,  I52n.,  629, 

631,  633. 

Rhodes  v.  Iowa,  170  U.  S.,  616. 
Rice  v.  Ames,  180  U.  S.,  627. 
Richmond  &  A.  R.  R.  v.  Patterson  Tobacco 

Co.,  169  U.  S.,  616. 
Richmond,  F.  &  P.  R.  R.  v.  Louisa  R.  R., 

13  How.,  622. 

Ro  Bards  v.  Lamb,  127  U.  S.,  645. 
Roanoke,  the,  189  U.  S.,  617,  630. 
Robbins  v.  Shelby  County  Tax.  Dist.,  120 

U.  S.,  423,  616. 

Robert  W.  Parsons,  the,  191  U.  S.,  419. 
Robertson  v.  Baldwin,  165  U.  S.,  628,  639, 

644. 

v.  Pickrell,  109  U.  S.,  632. 
Rochester  R.  R.  v.  Vicksburg  W.  W.  Co., 

206  U.  S.,  624. 

Rogers  v.  Alabama,  192  U.  S.,  630. 
Roller  v.  Holly,  176  U.  S.,  647. 
Rose  v.  Himely,  4  Cr.,  629. 
Rosen  v.  U.  S.,  161  U.  S.,  640. 
Ross,  in  re,  140  U.  S.,  610,  628,  630,  631,  640. 
Royall  v.  Virginia,  116  U.  S.,  623. 
Rusch  v.  Duncan  L.  &  M.  Co.,  21 1  U.  S.,  648. 

St.  Anthony  Falls  W.  P.  Co.  v.  St.  Paul 

Water  Comm'rs,  168  U.  S.,  642. 
St.  Clair  County  v.  Interstate  Transfer  Co., 

192  U.  S.,  617. 

St.  Lawrence,  the,  I  Black,  629. 
St.  Louis  v.  United  R'ys  Co.,  210  U.  S.,  624. 
St.  Louis  &  S.  F.  R.  R.  v.  Gill,  156  U.  S.,  639, 

646. 

v.  James,  161  U.  S.,  625,  630. 
v.  Mathews,  165  U.  S.,  624,  646. 
St.  Louis,  Iron  Mt.  &  S.  R.  R.  v.  Paul,  173 
U.  S.,  647. . 


St.  Louis,  Iron  Mt.  &  S.  R.  R.  v.  Taylor,  210 

U.  S.,  610,  631. 
v.  Vickers,  122  U.  S.,  630. 
St.  Mary's  Pet.  Co.  v.  West  Va.,  203  U.  S., 

647. 
St.  Paul,  M.  &  M.  R.  R.  v.  Phelps,  137  U.  S., 

620,  634. 
St.  Tammany  Water  Works  v.  New  Orleans 

W.  W.,  120  U.  S.,  623. 
San  Antonio  Traction  Co.  v.  Altgett,  200 

U.  S.,  624. 
San  Mateo  County  v.  So.  Pac.  R.  R.,  116 

U.  S.,  355- 

Sanchez  v.  U.  S.,  216  U.  S.,  648. 
Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S., 

616,  639. 
Santa  Clara  County  v.  So.  Pac.  R.  R.,  118 

U.  S.,  355,  356,  358,  645. 
Saranac  L.  &  T.  Co.  v.  Comptroller,  177 

U.  S.,  647. 

Satterlee  v.  Matthewson,  2  Pet.,  621. 
Sauer  v.  New  York,  206  U.  S.,  624,  647. 
Savanna,  etc.  R.  R.  v.  Savannah,  198  U.  S., 

624. 
Savings  &  Loan  Soc.  r.  Multinomah  County, 

169  U.  S.,  647. 

Sawyer,  in  re,  124  U.  S.,  229. 
Sawyer  v.  U.  S.,  202  U.  S.,  640,  641. 
Schaefer  v.  Werling,  188  U.  S.,  630. 
Schick  v.  U.  S.,  195  U.  S.,  632,  640. 
Schmidt  v.  Cobb,  119  U.  S.,  645. 
Scholey  v.  Rew,  23  Wall.,  6n,  614. 
Schollenberger  v.  Penn.,  171  U.  S.,  616. 
Schwab  v.  Berggren,  143  U.  S.,  646. 
Scott  v.  Donald,  165  U.  S.,  42411.,  616,  642. 
v.  McNeal,  154  U.  S.,  370,  646. 
v.  Neely,  140  U.  S.,  106,  623,  641. 
v.  Sandford,  19    How.,  253,  259,  290 
seq.,  329,  330,  337,  338,  344,  345, 
349,  35<>,  35i,  461,  611,  618,  620, 
633,  634,  644. 

Scranton  v.  Wheeler,  179  U.  S.,  617,  639,  642. 
Scully  v.  Bird,  209  U.  S.,  643. 
Seaboard  Air  Line  i>.  Florida,  203  U.  S.,  647. 

v.  Seegers,  207  U.  S.,  648. 
Searl  v.  School  Dist.,  133  U.  S.,  639. 
Security  Mut.  L.  Ins.  Co.  r.  Prewitt,  202 

U.  S.,  631. 
Security  Trust  Co.  v.  Lexington,  203  U.  S., 

647. 

Seibert  v.  Lewis,  122  U.  S.,  623. 
Sentell  v.  New  Orleans  &  C.  R.  R.,  166  U.  S., 

646. 

Sewing  Mach.  Cos.'  Case,  18  Wall.,  630. 
Sheldon  v.  Sill,  8  How.,  629. 


Shepard  v.  Barron,  194  U.  S.,  640. 

U  •  o«  j 

inter   C< 
U.  S.,  648. 


Sherlock  v.  Ailing,  93  U.  S.,  615. 
Shevlin-Carpenter  Co.   v.   Minnesota,    218 


Shibuya  Jugiro,  in  re,  140  U.  S.,  646. 


TABLE  OF  CASES 


xxxix 


Shoemaker  v.  U.  S.,  147  U.  S.,  619,  627,  639. 
Shoener  v.  Penn.,  207  U.  S.,  640. 
Sibbald  v.  U.  S.,  12  Pet.,  631. 
Siebold,  ex  parte,  100  U.  S.,  612,  626. 
Simmons  v.  Saul,  138  U.  S.,  632. 

v.  U.  S.,  142  U.  S.,  242,  639. 
Sinnot  v.  Davenport,  22  How.,  615,  635. 
Sioux  City  Str.  Ry.  v.  Sioux  City,  138  U.  S., 

623. 
Slaughter-House  Cases,  16  Wall.,  350-353, 


354,  368,  371,  372,  403,  434n.,  633,  644,  649. 

Hagg. 
Smith  v.  Alabama,  124  U.  S.,  616. 


,          ., 
Slave  Grace,  the,  2  Hagg.  Adm.,  253n. 


v.  Jennings,  206  U.  S.,  624. 

v.  Maryland,  18  How.,  615,  629,  638. 

v.  Reeves,  178  U.  S.,  630,  642. 

v.  St.  Louis  &  S.  W.  R.  R.,  181  U.  S., 

617. 

v.  Turner,  7  How.,  418. 
Smyth  v.  Ames,  169  U.  S.,  358,  636,  642. 
Society  for  Propagation  of  Gospel  v.  New 

Haven,  8  Wheat.,  635. 
Sohn  v.  Waterson,  17  Wall.,  622. 
Sommersett's  Case,  20  St.  Tr.,  253,  344. 
Soon  Hing  v.  Crowley,  113  U.  S.,  645. 
South.  &  N.  A.  R.  R.  v.  Alabama,  101  U.  S., 

622. 
South  Carolina  v.  Georgia,  93  U.  S.,  615. 

v.  U.    S.,  199  U.    S.,  610,  614,  621, 

631,  635,  636,  640,  642. 
South  Dakota  v.  No.  Carolina,  192  U.  S., 

630,  642. 
Southern  Pac.  Co.  v.  Denton,  146  U.  S.,  630, 

646. 

Southern  Pac.  R.  R.  v.  U.  S.,  200  U.  S.,  640. 
Southern  R.  R.  v.  Greene,  216  U.  S.,  648. 
Southwestern    Coal    Co.    v.    McBride,    185 

U.  S.,  620. 

Southwestern  Oil  Co.  v.  Texas,  217  U.  S.,  648. 
Spencer  v.  Duplan  Silk  Co.,  191  U.  S.,  630. 

v.  Merchant,  125  U.  S.,  630,  645. 
Spies  v.  Illinois,  123  U.  S.,  229,  234,  236,  638, 

639,  640. 

Spraigue  v.  Thompson,  118  U.  S.,  615. 
Spreckels  Sug.  Refin.  Co.  v.  McClain,  192 

U.  S.,  432,  630. 

Springer  v.  U.  S.,  102  U.  S.,  614,  620. 
Standard  Oil  Co.  v.  Tennessee,  217  U.  S.,  648. 
State  v.  Lowry,  166  Ind.,  406. 
State  v.  Main,  69  Conn.,  46. 
State  Bank  of  Ohio  v.  Knoop,  16  How.,  622. 
State  Freight  Tax  Case.  See  Philadelphia  & 

R.  R.  R.  v.  Penn. 
State  Tax  on  Foreign-held  Bonds,  15  Wall., 

614,  622. 
State  Tax  on  Railway  Gross  Receipts,  15 

Wall.,  613,  625. 

State  Tonnage  Tax  Cases,  12  Wall.,  625. 
Steamship  Co.  v.  Port  Wardens,  6  Wall.,  615. 
Stearns  v.  Minnesota,  179  U.  S.,  624. 


Stein  v.  Bienville  Water  Supply  Co.,  141 

U.  S.,  623. 

Stevens  v.  Nichols,  157  U.  S.,  646. 
Stewart  v.  Kahn,  II  Wall.,  618,  628. 
Stockard  v.  Morgan,  185  U.  S.,  617. 
Stone  v.  Farmers'  Loan  &  Trust  Co.,  116 

U.  S.,  424,  623,  645. 
v.  Illinois  Cent.  R.  R.,  116  U.  S.,  623. 
v.  Mississippi,  101    U.   S.,  412,  413, 

622. 

Stoutenburgh  v.  Hennick,  129  U.  S.,  616,  620. 
Strader  v.  Graham,  10  How.,  265n. 
Strauder  v.  West  Va.,  100  U.  S.,  645. 
Strauss,  in  re,  197  U.  S.,  632. 
Strawbridge  v.  Curtiss,  3  Cr.,  629. 
Stuart  v.  Laird,  I  Cr.,  628. 
Sturges  v.  Crowninshield,  4  Wheat.,  617,  621. 
Sugar  Trust  Case.  See  U.  S.  v.  Knight. 
Sugg  v.  Thornton,  132  U.  S.,  645. 
Sullivan  v.  Texas,  207  U.  S.,  624. 
Sully  v.  American  Nat.  Bk.,  178  U.  S.,  633, 

647. 
Supreme  Lodge  Knights  of  Pythias  v.  Meyer, 

198  U.  S.,  624. 

Suydam  v.  Broadnax,  14  Pet.,  618,  629. 
Swafford  v.  Templeton,  185  U.  S.,  630. 
Sweet  v.  Rechel,  159  U.  S.,  639. 

Talton  v.  Mayes,  163  U.  S.,  634,  639,  646. 
Tampa  Water  W'ks  v.  Tampa,  199  U.  S.,  624 
Tarble's  Case,  13  Wall.,  620,  630. 
Taylor  v.  Beckham,  178  U.  S.,  635,  647. 
v.  Taintor,  16  Wall.,  633. 
v.  U.  S.,  207  U.  S.,  640. 
Tennessee  v.  Davis,  100  U.  S.,  610,  630. 

v.  Pullman  So.  Car  Co.,  117  U.  S., 

615- 

Terrett  v.  Taylor,  9  Cr.,  638. 
Texas  v.  White,  7  Wall.,  311,  339,  340,  610, 

619,  635. 

Texas  &  Pacific  R.  R.  Co.  v.  Interstate  Com- 
merce Com.,  162  U.  S.,  421. 
v.  Interstate  Transfer  Co.,  155  U.  S., 

616. 
v.  Southern   Pac.   R.  R.,  137  U.  S., 

616,  632. 
Thomas  v.  Texas,  212  U.  S.,  648. 

0.  U.  S.,  192  U.  S.,  611,  614. 
Thompson  v.  Kentucky,  209  U.  S.,  648. 
v.  Missouri,  171  U.  S.,  624. 
v.  Utah,  170  U.  S.,  624,  631,  634. 
v.  Whitman,  18  Wall.,  632. 
Thomson  v.  Union  Pac.  R.  R.,  9  Wall.,  615, 

620. 
Thorington  v.  Montgomery,  147  U.  S.,  639, 

646. 

Thormann  v.  Frame,  176  U.  S.,  632. 
Thurlow  v.  Massachusetts,  5  How.,  417,  614, 

615. 
Tilt  v.  Kelsey,  207  U.  S.,  633. 


xl 


TABLE  OF  CASES 


Tindal  v.  Wesley,  167  U.  S.,  642. 
Tinsley  v.  Anderson,  171  U.  S.,  639,  647. 

v.  Treat,  205  U.  S.,  632,  641. 
Tomlinson  v.  Branch,  15  Wall.,  622. 

v.  Jessup,  15  Wall.,  622. 
Tonawanda  v.  Lyon,  181  U.  S.,  639. 
Traction  Co.  v.  Mining  Co.,  196  U.  S.,  631. 
Tracy  v.  Ginzberg,  205  U.  S.,  647. 
Trade-Mark  Cases.  See  U.  S.  v.  Steffens. 
Travelers'  Ins.  Co.  v.  Conn.,  185  U.  S.,  633. 
Trevett  v.  Weeden  (R.  I.),  104  and  n. 
Trono  v.  U.  S.,  199  U.  S.,  640. 
Tullis  v.  Lake  Erie  R.  R.,  175  U.  S.,  647. 
Tullock  v.  Mulvane,  184  U.  S.,  630. 
Turner  v.  New  York,  168  U.  S.,  646. 
Turnpike  Co.  v.  State,  3  Wall.,  622. 
Turpin  v.  Burgess,  117  U.  S.,  621. 
Twin  City  Bank  v.  Nebeker,  167  U.  S.,  613, 

614. 
Twining  v.  N.  J.,  211  U.  S.,  79,  82,  236,  366, 

367,  369,  370,  640,  648. 
Twitchell  v.  Penn.,  7  Wall.,  229n.,  639. 
Tyler,  in  re,  149  U.  S.,  610,  642. 
Tyler  v.  Defrees,  n  Wall.,  618. 

Ughbanks  v.  Armstrong,  208  U.  S.,  641,  648. 
Union  Bridge  Co.  v.  U.  S.,  204  U.  S.,  610, 

617,  640. 
Union  Pac.  R.  R.  v.  Peniston,  18  Wall.,  6id. 

620. 

U.  S.  v.  Alexander.    See  Alexander's  Cotton. 
v.  Amedy,  n  Wheat.,  632. 
v.  American  Tobacco  Co.,  166  U.  S., 

442. 

v.  Arjona,  120  U.  S.,  618. 
v.  Arredondo,  6  Pet.,  629. 
v.  Ballin,  144  U.  S.,  612,  613,  614. 
v.  Beebe,  127  U.  S.,  630. 
v.  Bevans,  3  Wheat.,  619,  629. 
v.  Bitty,  208  U.  S.,  631. 
v.  Booth,  21  How.,  620,  631,  634,  635. 
v.  Burr  (Circuit  Court),  4  Cr.,  251, 

252,  632. 

v.  Church  of  Jesus  Christ  of  Latter- 
Day  Saints,  150  U.  S.,  294n. 
v.  Cook,  17  Wall.,  640. 
v.  Coolidge,  I  Wheat.,  640. 
v.  Coombs,  12  Pet.,  615. 
v.  Cruikshank,  92    U.    S.,  232,  273, 

373,  638,  640,  649,  650. 
v.  Delaware   &   Hudson  R.  R.,  213 

U.  S.,  617,  640. 
v.  DeWalt,  128  U.  S.,  639. 
».  Dewitt,  9  Wall.,  619. 
v.  Fisher,  2  Cr.,  333. 
v.  Fox,  94  U.  S.,  619. 
v.  Gettysburg  Electric  Ry.  Co.,  160 

U.  S.,  406. 

v.  Gratiot,  14  Pet.,  634. 
v.  Hamilton,  3  Dall.,  620. 


U.  S.  v.  Heinszen,  206  U.  S.,  610,  634,640. 
v.  Heinze,  218  U.  S.,  648. 
v.  Holliday,  3  Wall.,  615. 
v.  Hudson,  7  Cr.,  629. 
v.  Insurgents,  2  Dall.,  632. 
v.  Joint  Traffic  Assoc.,  171  U.  S.,  444. 
v.  Jones,  109  U.  S.,  610. 
v.  Ju  Toy,  198  U.  S.,  620,  640. 
v.  Kirkpatrick,  9  Wheat.,  627,  628. 
».  Klein,  13  Wall.,  627. 
v.  E.  C.  Knight   Co.,  156  U.  S.,  298, 

436,  437,  448,  449,  610,  616. 
v.  La  Vengeance,  3  Dall.,  629,  641. 
v.  Lynah,  188  U.  S.,  617,  639. 
v.  Marigold,  9  How.,  615,  618. 
v.  Mills,  7  Pet.,  640. 
v.  Mitchell,  2  Dall.,  632. 
v.  More,  3  Cr.,  629. 
v.  Ortega,  n  Wheat.,  629,  631. 
v.  Padelford,  9  Wall.,  627. 
v.  Palmer,  3  Wheat.,  618. 
v.  Perez,  9  Wheat.,  639. 
v.  Peters,  5  Cranch,  333,  334,  628. 
v.  Realty  Co.,  163  U.  S.,  614. 
v.  Railroad  Co.,  17  Wall.,  322. 
v.  Reese,  92  U.  S.,  373,  650. 
v.  Ritchie,  17  How.,  628. 
v.  Rogers,  4  How.,  634. 
v.  Sing  Tuck,  194  U.  S.,  620. 
v.  Singer,  15  Wall.,  614. 
v.  Smith,  5  Wheat.,  618. 
v.  Stanley,    109  U.  S.,  346,  357,  644, 

v.  Steffens,  100  U.  S.,  618. 
v.  Texas,  143  U.  S.,  630,  631. 
v.  Trans-Missouri    Freight    Associa- 
tion, 1 66  U.  S.,  436, 437, 438, 439, 
444,  449. 

v.  Waddell,  112  U.  S.,  612,  650. 
v.  Forty-three   Gallons  of   Whiskey, 

93  U.  S.,  615. 
v.  Wilson,  7  Pet.,  627, 
v.  Wiltberger,  5  Wheat.,  618. 
v.  Wong   Kim  Ark,  169  U.  S.,  354, 

358,  647. 

v.  Zucker,  161  U.  S.,  640. 
U.  S.  exreL  Bernardino.  Duell,  i72U.S.,6i8. 
U.  S.  ex  rel.  Goodrich  v.  Guthrie,  17  How., 

629. 

U.  S.  ex  rel.  Siegel  v.  Thoman,  156  U.  S.,  624. 
U.  S.  ex  rel.  Turner  v.  Williams,  194  U.  S., 

628,  638,  640,  642. 

U.  S.,  use  of  Mackey,  v.  Coxe,  18  How.,  634. 
Utter  v.  Franklin,  172  U.  S.,  633. 

Vallandigham,  ex  parte,  1  Wall.,  620,  628, 

629. 

Van  Allen  v.  Assessors,  3  Wall.,  614. 
Vance  v.  Vandercook,  170  U.  S.,  42411.,  616. 
Vannevar  v.  Bryant,  21  Wall.,  630. 


TABLE  OF  CASES 


xii 


Veazie  v.  Moor,  14  How.,  615. 

Veazie  Bank  t>.  Fenno,  8  Wall.,  611,  614. 

Vicksburg  v.  Tobin,  100  U.  S.,  625. 

v.  W.  W.  Co.,  202  U.  S.,  624. 
Vidal  v.  Gerard,  2  How.,  638. 
Vincennes  Univ.  v.  Indiana,  14  How.,  622. 
Virginia  Coupon  Cases,  114  U.  S.,  270. 
Virginia,  ex  parte,  100  U.  S.,  45,  226,  620, 

^644,  645. 
Virginia  v .  Rives.  See  Virginia,  ex  parte. 

v.  Tennessee,  148  U.  S.,  625. 

v.  West  Va.,  n  Wall.,  630. 
Virginia  Coupon  Cases,  135  U.  S.,  623,  642. 
Von  Hoffman  v.  Quincy,  4  Wall.,  622. 

Wabash  &  Erie  C.  Co.  v.  Beers,  2  Black,  622. 
Wabash  R.  R.  v.  Flannigan,  192  U.  S.,  633. 

v.  Pearce,  192  U.  S.,  630. 
Wabash,  St.  L.  &  Pac.  R.  R.  Co.  v.  Illinois, 

118  U.  S.,  4i8n.,  615,  616. 
Walker  v.  McLoud,  204  U.  S.,  647. 

v.  New  Mex.  &  So.  Pac.  R.  R.,  165 
U.  S.,  641. 

v.  Whitehead,  16  Wall.,  622. 

v.  Sauvinet,  92  U.  S.,  649. 
Wall,  ex  parte,  107  U.  S.,  631. 
Walla  Walla  v.  W.  W.  Water  Co.,  172  U.  S., 

624. 

Wallace  v.  Parker,  6  Pet.,  26sn. 
Wallach  v.  Van  Riswick,  92  U.  S.,  627,  632. 
Walling  v.  Michigan,  116  U.  S.,  615. 
Walsh  v.  Columbus,  H.  V.  &  A.  R.  R..  176 

U.  S.,  624. 

Walston  v.  Nevin,  128  U.  S.,  645. 
Ward  v.  Maryland,  12  Wall.,  633,  649. 

v.  Race  Horse,  163  U.  S.,  610,  634, 

635. 

Ware  v.  Hylton  ,3  Dallas,  130,  627,  635. 
v.  Mobile  County,  209  U.  S.,  617. 
Waring  v.  Clarke,  5  How.,  629. 

v.  Mobile,  8  Wall.,  615,  625. 
Washington  Univ.  v.  Rouse,  8  Wall.,  622. 
Waters- Pierce  Oil  Co.  v.  Deselms,  212  U.  S., 

648. 

v.  Texas,  212  U.  S.,  624,  648. 
Watkins,  ex  parte,  3  Pet.,  620. 
Watson  v.  Maryland,  218  U.  S.,  648. 

v.  Mercer,  8  Pet.,  620,  621. 
Wayman  v.  Southard,  10  Wheat.,  619,  631. 
Webster  v.  Reid,  n  How.,  641. 
Wedding  v.  Meyler,  192  U.  S.,  633. 
Welch  v.  Swasey,  214  U.  S.,  648. 
Wells,  ex  parte,  18  How.,  627. 
West  v.  Louisiana,  194  U.  S.,  640. 
West  Chicago  Str.  R.  R.  v.  Chicago,  201 

U.  S.,  624. 
West  River  Bridge  Co.  v.  Dix,  6  How.,  622, 

639- 

West  Wisconsin  R.  R.  v.  Supervisors,  93 
U.  S.,  622. 


Western  Turf  Assoc.  v  .  Greenberg,  204  U.  S., 

647. 

Western  Union  Tel.  Co.  v.  Alabama,  132 
U.  S.,  616. 

v.  Ann  Arbor  R.  R.,  178  U.  S.,  630. 

v.  Commercial  Milling  Co.,  218  U.  S., 
648. 

v.  Indiana,  165  U.  S.,  646. 

v.  James,  162  U.  S.,  616. 

v.  Mass.,  125  U.  S.,  616. 

v.  Missouri,  190  U.  S.,  426. 

v.  New  Hope,  187  U.  S.,  617. 

v.  Pendleton,  122  U.  S.,  616,  642. 

v.  Penn.  R.  R.  195  U.  S.,  617,  618. 

v.  Taggart,  163  U.  S.,  616,  646. 


W.  U.  Tel.  Co.  v.  Texas,  105  U.  S., 
Weston  v.  Charleston,  2  Pet.,  614. 
Wetmore  v.  Karrick,  205  U.  S.,  633. 
Weyerhaueser  v.  Minnesota,  176  U.  S.,  647. 
Wharton  v.  Wise,  153  U.  S.,  625. 

».  Peters,  8  Pet.,  618. 
Wheeler  v.  Jackson,  137  U.  S.,  623,  639,  646. 

v.  New  York,  N.  H.  &  H.  R.  R.,  178 

U.  S.,  647. 
Wheeling  &  B.  Br.  Co.  v.  Wheeling  Br.  Co., 

138  U.  S.,  623. 

White  v.  Hart,  13  Wall.,  246,  622,  644. 
White's  Bank  v.  Smith,  7  Wall.,  615. 
Whitehead  v.  Shattuck,  138  U.  S.,  641. 
Whitney  v.  Robertson,  124  U.  S.,  635. 
Wight  v.  Davidson,  181  U.  S.,  619,  639. 
Wiley  v.  Sinkler,  179  U.  S.,  611,  630. 
Wilkes  v.  Wood,  19  St.  Trials,  234. 
Wilkes  County  v.  Coler,  180  U.  S.,  613,  614, 

631,  632. 
Willamette  Bridge  Co.  v.  Hatch,  125  U.  S., 

616. 

Willard  v.  Presbury,  14  Wall.,  619. 
Williams  v.  Arkansas,  217  U.  S.,  648. 

v.  Bruffy,  96  U.  S.,  610. 

v.  Eggleston,  170  U.  S.,  624,  647. 

v.  Fears,  179  U.  S.,  617,  621,  633, 
647. 

v.  Mississippi,  i7oU.  S.,  374,  375,  647. 
Williamson  v.  New  Jersey,  130  U.  S.,  623. 

v.  U.  S.,  207  U.  S.,  613. 
Wilmington  &  W.  R.  R.,  ».  Alsbrook,  146 
U.  S.,  623. 

v.  King,  91  U.  S.,  622. 

v.  Reid,  13  Wall.,  622. 
Wilmington  Min.  Co.  v.  Fulton,  205  U.  S., 

647. 

Wilson,  ex  parte,  114  U.  S.,  639. 
Wilson  v.  Black  Bird  C.  M.  Co.,  2  Pet.,  615. 

v.  Eureka,  173  U.  S.,  647. 

v.  Lambert,  168  U.  S.,  639. 

v.  McNamee,  102  U.  S.,  615. 

v.  No.  Carolina,  169  U.  S.,  647. 

v.  Shaw,  204  U.  S.,  617. 
Winnebago,  the,  205  U.  S.,  631. 


xlii 


TABLE  OF  CASES 


Winona  &  St.  P.  Land  Co.  v.  Minnesota,  159 

U.  S.f  623,  646. 
v.  Plainview,  143  U.  S.,  623. 
Wiscart  v.  Dauchy,  3  Dall.,  631. 
Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.,  630, 

631. 
Wisconsin  Cent.  R.  R.  v.  Price  County,  133 

U.  S.,  634. 
Wisconsin,  M.  &  P.  R.  R.  v.  Jacobson,  179 

U.  S.,  451,  617,  647. 
Wisner,  ex  parte,  203  U.  S.,  628. 
Withers  v.  Buckley,  20  How.,  639,  640. 
Wong  Wing  v.  U.  S.,  163  U.  S.,  640. 
Woodruff  v.  Mississippi,  162  U.  S.,  624,  631. 
v.  Parham,  8  Wall.,  614,  625,  633. 
v.  Trapnall,  10  How.,  622. 


Worcester  v.  Georgia,  6  Peters,  335,  615, 627, 

635. 
Wright  v.  Georgia  R.  &  B.  Co.  216  U.  S.,  624. 

v.  Nagle,  101  U.  S.,  622. 
Wurts  v.  Hoagland,  114  U.  S.,  645. 

Yamataya  t;.  Fisher,  189  U.  S.,  639. 
Yarbrough,  ex  parte,  uoU.  S.,6n,6i2,  650. 
Yazoo  &  Miss.  R.  R.  v.  Vicksburg,  209  U.  S., 

624. 

Yerger,  ex  parte,  8  Wall.,  620,  629,  631. 
Yesler  v.  Wash.  H.  L.  Com.,  146  U.  S.,  639, 

646. 

Yick  Wo  v.  Hopkins,  118  U.  S.,  267n.,  645. 
York  v.  Texas,  137  U.  S.,  646. 
Young,  ex  parte,  209  U.  S.,  643,  648. 


THE  ORIGIN  AND  GROWTH 

OF  THE 

AMERICAN  CONSTITUTION 


THE  ORIGIN  AND  GROWTH  OF  THE 
AMERICAN  CONSTITUTION 

CHAPTER  I 

INTRODUCTORY 

No  effort  was  ever  made  to  write  the  history  of  the  English  Sources  of 
Constitution  until  very  recent  times,  and  when  the  work  did  ^SS^ 
begin  the  historians  confined  themselves  almost  entirely  to  the  Constitutions 
aftergrowth,  leaving  the  initial  period,  the  starting-point  of 
everything,  almost  untouched.  Hallam  began  his  "Constitu- 
tional History"  with  the  accession  of  the  House  of  Tudor,  — 
three  meagre  chapters  in  the  "Middle  Ages"  contain  all  he 
desired  to  say  of  the  formative  epoch.  Macaulay's  "  History 
of  England"  really  begins  with  the  accession  of  the  House  of 
Stuart,  —  into  a  single  chapter  are  condensed  the  reflections 
of  the  most  brilliant  and  inquisitive  of  Englishmen  upon  the  ten 
eventful  centuries  preceding  that  event.  Only  within  the  last 
seventy  years  have  the  charters,  chronicles,  and  memorials  in 
which  was  entombed  the  early  history  of  the  English  Constitu- 
tion been  made  accessible ;  and  only  within  the  last  forty  have 
they  been  subjected  to  the  final  analysis  which  at  last  ex- 
tracted from  them  their  full  and  true  significance.1  In  the  same 
way  the  three  most  famous  foreign  expounders  of  the  American 

1  The  good  work  feebly  begun  by  Normandy  and  England,  1851-64. 

Sharon  Turner  in  his  History  of  the  Not,  however,  until   Freeman   had 

Anglo-Saxons,    published    between  completed  his  History  of  the  Norman 

1799   and    1805,    was   greatly   ad-  Conquest,  not  until  Bishop  Stubbs 

vanced  by  Kemble,  who  published  had    completed    the    Constitutional 

his  Codex  Diplomaticus &vi  Saxonici  History,    the    Select    Charters,    and 

in  1839,  and  his  Saxons  in  England  in  "the    wonderful     prefaces"  —  all 

1848.  Thorpe  published  his  Ancient  within  very  recent  years  —  did  the 

Laws  and  Institutes  of  England  in  grand  inquest  into  the  sources  of  the 

1840;  Sir  Francis  Palgrave,  The  Rise  English  Constitution  which  Kemble 

and  Progress  of  the  English  Common-  and     Palgrave     had     inaugurated, 

wealth  in  1832,  and  the  History  of  reach  a  definite  and  final  result. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Tocqueville, 
1835. 


Constitution  have  dealt  seriously  only  with  its  aftergrowth, 
without  any  real  effort  to  ascertain  the  source  from  which  the 
entirely  new  plan  of  federal  government  it  embodies  was 
derived.  Their  work  began  with  the  remarkable  series  of  ob- 
servations  published  in  1835  by  Alexis  de  Tocqueville,  "  De  la 
democratic  en  Amerique,"  a  treatise  on  democracy  in  general, 
with  striking  illustrations  drawn  from  its  American  history. 
By  far  the  most  notable  part  of  that  performance  was  embod- 
ied in  the  declaration  that  our  second  Federal  Constitution  of 
1789  is  based  "upon  a  wholly  novel  theory  which  may  be  con- 
sidered a  great  discovery  in  modern  political  science.  .  .  .  The 
American  states,  which  combined  in  1789,  agreed  that  the 
Federal  Government  should  not  only  dictate  but  should  execute 
its  own  enactments.  In  both  cases  the  right  is  the  same,  but 
the  exercise  of  the  right  is  different;  and  this  difference  pro- 
duced the  most  momentous  consequences."  *  Tocqueville  was 
the  first  to  inform  trained  students  of  the  science  of  politics 
that  upon  the  ruins  of  the  Articles  of  Confederation  an  entirely 
new  federal  fabric  had  arisen  without  a  prototype  in  history,  — 
His  description  a  fabric  based  on  a  "wholly  novel  theory."  But  beyond  that 
Pomt  ^e  ^d  not  attempt  to  go  ;  as  to  the  origin  or  authorship 
of  the  "great  discovery  in  modern  political  science,"  he  made 
no  inquiry  whatever.  To  that  part  of  the  subject  he  contributed 
only  a  barren  statement:  "This  national  convention  (1787), 
after  long  and  mature  deliberation,  offered  to  the  acceptance  of 
the  people  the  body  of  general  laws  which  still  rules  the  Union. 
All  the  states  adopted  it  successively."  2 

Forty  years  later  we  have  "The  Constitutional  and  Political 
History  of  the  United  States,"  by  Dr.  H.  von  Hoist,  who 
signed  his  preface  at  Freiburg  in  1875.  The  fact  that  his  first 
chapter  is  entitled,  "The  Origin  of  the  Union,  the  Confedera- 
tion, and  the  Struggle  for  the  Present  Constitution,"  is  a  clear 
indication  that  he  felt  called  upon  to  make  some  explanation 
as  to  the  origin  of  the  "wholly  novel  theory"  of  federal  govern- 
ment the  existing  Constitution  embodies.  The  result,  however, 
was  only  this  unedifying  recitation:  "Nearly  four  months 
elapsed  before  the  delegates  could  agree  upon  a  plan  of  which 
they  said  to  themselves,  with  Hamilton,  that  it  is  not  possible 

1  Democracy  in  America,  i,  198,          *  Ibid.,  i,  142. 
199,  Bowen  ed. 


Von  Hoist, 


I.]  INTRODUCTORY 

to  hesitate  between  the  prospect  of  seeing  good  come  from  it, 
and  anarchy  and  confusion.  On  the  iyth  of  September  it  was 
unanimously  resolved  that  the  plan  should  be  adopted  by  the 
states  represented  at  the  time,  which  was  done."  And  yet 
despite  that  colorless  and  inaccurate  description  of  what  actu- 
ally occurred  on  the  day  the  Convention  adjourned,  Von  Hoist, 
with  his  critical  and  practical  German  mind,  did  clearly  per- 
ceive the  absurdity,  the  childishness  of  what  he  well  termed 
the  "Inspiration  Theory,"  by  which  he  said  the  American  Ridicules  the 
people  were  enthralled.  To  use  his  own  words:  "The  masses  of 
the  American  people,  in  their  vanity  and  too  great  self -appre- 
ciation, are  fond  of  forgetting  the  dreadful  struggle  of  1787  and 
1788,  or  of  employing  it  only  as  a  name  for  the  'divine  inspira- 
tion' which  guided  and  enlightened  the  'fathers'  at  Phil- 
adelphia. .  .  .  This  is  not  a  mere  idle  phrase ;  it  is  one  of  the 
standing  formulas  in  which  the  self-complacency  and  pride  of  a 
people  who  esteem  themselves  special  objects  of  the  care  of  the 
Ruler  of  the  Universe  find  expression.  We  reproduce  one 
illustration  of  this,  out  of  a  whole  multitude.  In  the  '  North 
American  Review'  (1862,  i,  160)  we  read:  'Such  a  govern- 
ment we  regard  as  more  than  the  expression  of  calm  wisdom 
and  lofty  patriotism.  It  has  its  distinctively  providential  ele- 
ment. It  was  God's  saving  gift  to  a  distracted  and  imperiled 
people.  It  was  his  creative  fiat  over  a  weltering  chaos:  'Let  a 
nation  be  born  in  a  day.' "  1  After  ridiculing  in  that  fashion  the  Fails  to  exam- 
grotesque  assumption  he  was  the  first  to  label  the  "  Inspiration  me  sourees- 
Theory,"  Von  Hoist  adds:  "In  Europe  this  view  of  the  case  has 
been  generally  accepted  as  correct."  Thus  it  appears  that  while 
the  broad  arid  philosophical  German  publicist  made  no  real 
attempt  to  ascertain  the  source  from  which  the  new  American 
type  of  federal  government  was  derived,  he  was  fully  impressed 
with  the  pitiful  absurdity  of  attributing  to  it  a  supernormal 
origin  through  a  "creative  fiat"  from  on  high. 

In  1888  appeared  "The  American  Commonwealth,"  by  the  Bryce,  1888, 
Rt.  Hon.  James  Bryce,  a  monumental  work  praised  by  all, 
whose  primary  purpose  is  declared  to  be  the  ascertainment 
of  "three  main  things  that  one  wishes  to  know  about  a  na- 
tional commonwealth,  viz.,  its  framework  and  constitutional 
machinery,  the  methods  by  which  it  is  worked,  the  forces 
1  Vol.  i,  pp.  62-63,  and  note  I  on  p.  63. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Failure  to  re- 
cognize origin- 
ality of  new 
federal  system. 


which  move  it  and  direct  its  course."  l  When  this  now  famous 
exposition  is  viewed  as  a  whole,  it  clearly  appears  that  its 
primary  purpose  is  to  describe  the  operation  of  the  "constitu- 
tional machinery,"  after  the  unique  federal  fabric  of  1789  had 
entered  upon  its  career.  In  so  limiting  the  scope  of  the  work  the 
author  says:  "How  did  so  complex  a  system  arise,  and  what 
influences  have  moulded  it  into  its  present  form?  This  is  a 
question  which  cannot  be  answered  without  a  few  words  of  his- 
torical retrospect.  I  am  anxious  not  to  stray  far  into  history 
because  the  task  of  describing  American  institutions  as  they 
now  exist  is  more  than  sufficiently  heavy  for  one  writer  and  one 
book."  2  Then  follows  a  brief  chapter  entitled  "The  Origin  of 
the  Constitution,"  a  title  clearly  indicating  that  some  explana- 
tion is  to  be  made  as  to  the  source  from  which  the  "wholly 
novel  theory"  of  federal  government  embodied  in  the  Constitu- 
tion was  derived.  Nothing  could  be  more  profoundly  disap- 
pointing than  the  result.  There  is  no  recognition  whatever  of 
the  fact  that  out  of  the  work  of  the  Federal  Convention 
emerged  a  new  federal  fabric  without  a  prototype  in  history, 
—  a  federal  fabric  armed  for  the  first  time  with  the  power  to 
tax;  a  federal  fabric  divided  for  the  first  time  into  three  de- 
partments, executive,  legislative,  and  judicial;  a  federal  fabric 
endowed  for  the  first  time  with  a  two-chamber  legislature; 
a  federal  fabric  endowed  for  the  first  time  with  a  judiciary 
capable  of  putting  the  stamp  of  nullity  on  national  and  state 
laws;  a  federal  fabric  operating  for  the  first  time  directly  on 
individuals  and  not  on  states  as  corporations.  As  attributes  of 
a  federal  government  these  five  were  "absolutely  new."  Against 
Tocqueville's  unanswerable  declaration  that  "this  Constitu- 
tion .  .  .  rests  in  truth  upon  a  wholly  novel  theory  which  may 
be  considered  a  great  discovery  in  modern  political  science," 
a  discovery  which  has  "produced  the  most  momentous  conse- 
quences," Mr.  Bryce  sets  only  the  negative  and  entirely  inade- 
quate statement  that  "There  is  little  in  this  Constitution  that 
is  absolutely  new.  There  is  much  that  is  as  old  as  Magna 
Carta." 3  There  is  an  entire  failure  to  differentiate  the  new  federal 


1  Vol.  i,  p.  5. 

•  Ibid.  18. 

1  Ibid.  29.  The  statement  is  in- 
adequate and  misleading  because  it 
refuses  to  admit  the  manifest  fact, 


so  luminously  stated  by  Tocqueville, 
that  a  "wholly  novel "  form  of  fed- 
eral government  had  come  into  ex- 
istence, endowed  with  five  basic 
attributes  never  before  possessed  by 


I.]  INTRODUCTORY 

fabric  —  as  unlike  any  preexisting  federal  fabric  as  a  modern 
mogul  engine  is  unlike  an  ancient  stagecoach  —  from  the  tradi- 
tional English  law  worked  into  it  as  a  part  of  its  machinery. 
No  federal  principle  embodied  in  the  American  Constitution  No  federal 
was  derived  from  the  mother  country,  for  the  simple  and  con-  jj^dTro  d 
elusive  reason  that  in  the  consolidated  state  known  as  England  England, 
there  is  no  federalism  in  any  form.   Great  as  the  fathers  were, 
they  could  not  draw  from  an  empty  well.  After  the  path-break- 
ing idea  of  a  federal  y^vprninp^t.  with  tfte  nnwer  to  tax 
been  established  as  the  basic  concept,  a  self -sustaining 
system  resulted  as  a  corollary;  and  the  several  parts  of  that 
system  were  then  organized  according  to  English  law  and 
practice.  9  Why  was  it  that  the  three  famous  foreign  expound- 
ers of  fne  American  Constitution,  who  have  so  learnedly  and 
luminously  drawn  out  its  aftergrowth,  failed  to  shed  any  light 
whatever  upon  the  origin  of  the  unique  federal  creation  it 
embodies?    The  answer  is  easy.    The  fault  lies  at  the  door  of  Fault  of  Amer- 
American  historical  scholarship,  which  had  failed  to  furnish 
them  with  the  necessary  data.   No  attempt  was  made  here  to 
write  the  history  of  the  proceedings  of  the  Federal  Convention 
until  sixty-seven  years  after  its  adjournment;  and  the  tardy 
inquiry  then  instituted  has  only  reached  the  sources  within 
the  last  few  years. 

The  Federal  Convention  of  1787,  which  shrouded  its  pro-  Federal  Con- 
ceedings  in  a  secrecy  as  profound  as  that  which  incloses  a  ma- 
sonic  lodge,  sealed  its  records  at  the  close  and  committed  them  lodge. 
to  Washington  with  the  injunction  "that  he  retain  the  Journal 
and  other  papers  subject  to  the  order  of  Congress,  if  ever 
formed  under  the  Constitution."  1  It  was  understood  that  the 
members  would  regard  all  that  occurred  as  confidential,  and 
in  general  that  understanding  was  lived  up  to.  Both  Washing- 
ton and  Madison  earnestly  insisted  that  the  proceedings  of  the 
Convention  should  not  be  made  public  during  the  lifetimes  of 
the  members,  or  at  least  not  so  long  as  the  opinions  any  mem- 
ber might  have  expressed  in  debate  should  in  any  way  be  used 
to  his  prejudice.2  Not  until  1818  did  Congress  partially  break 

any   federal  system,  and  therefore  Documentary  History  of  the  Consti- 

" absolutely  new."  tution,  v,  310;   Max  Farrand's  ad- 

1  Documentary  History  of  the  Con-  mirable    monograph,    entitled    The 
stitution,  Hi,  769-770.  Records   of  the    Federal  Convention, 

2  J.  Q.  Adams,  Memoirs,  iv,  175;  45.  Reprinted  from   The  American 


THE  AMERICAN  CONSTITUTION 


[€H. 


Seal  only  par- 
tially broken 
in  1818. 


Full  record 
not  published 
until  1841. 


Story's  com- 
mentary, 1840. 


Only  a  color- 
less statement. 


the  seal  of  that  secrecy  by  a  joint  resolution  directing  the  pub- 
lication of  the  ' '  Journal  .  .  .  and  all  Acts  and  Proceedings ' '  of 
the  Convention  in  possession  of  the  Government.1  But  through 
that  disclosure  we  received  only  a  fragment,  as  the  so-called 
Journal  had  been  made  up  by  an  official  secretary  who,  either 
through  incompetence  or  neglect,  kept  what,  according  to 
Adams,  "were  no  better  than  the  daily  minutes  from  which  the 
regular  Journal  ought  to  have  been,  but  never  was,  made  out."  2 
The  real  record  of  the  proceedings  of  the  Convention,  prepared 
by  the  semi-official  reporter,  James  Madison,  and  now  em- 
bodied in  the  three  volumes  of  his  priceless  "  Papers,"  was  not 
published  by  Gilpin  until  1841.  In  that  way  fifty-four  years 
passed  by,  after  the  adjournment  of  the  Convention,  before  the 
full  report  of  its  secret  proceedings  was  given  to  the  world. 
During  that  half -century  of  mystery  and  suppression  it  was 
that  the  mythical  history  of  what  actually  took  place  in  the 
secret  conclave  crystallized  into  a  series  of  misty  and  misleading 
impressions  so  fixed  in  the  minds  of  many  that  it  is  now  dif- 
ficult to  dislodge  them  even  with  the  aid  of  clear  and  explicit 
documentary  evidence.  "My  siege  is  finished,"  exclaimed 
Vertot,  when  offered  new  documents  which  stultified  his  narra- 
tive. In  the  same  spirit  many  of  the  devotees  of  the  "  Inspira- 
tion Theory,"  so  justly  ridiculed  by  Von  Hoist,  still  respond 
even  when  the  connected  documentary  history  of  all  that 
occurred  is  offered  them. 

In  1840,  just  a  year  before  the  publication  of  the  "Madison 
Papers,"  Mr.  Justice  Story  published  "a  brief  commentary  on 
every  clause  [of  the  Constitution],  explaining  the  true  nature, 
reasons,  and  objects  thereof;  designed  for  the  use  of  school 
libraries  and  general  readers."  From  the  three  pages  devoted 
to  the  "Origin  of  the  Constitution"  only  this  can  be  extracted: 
"  Congress  adopted  the  recommendation  of  the  Report,  and  in 
February,  1787,  passed  a  resolution  for  assembling  a  Conven- 
tion accordingly.  All  the  states,  except  Rhode  Island,  appointed 
delegates ;  and  they  met  at  Philadelphia.  After  very  protracted 
deliberations,  and  great  diversities  of  opinion,  they  finally,  on 


Historical  Review,   vol.  xiii,    no.  I, 
Oct.,  1907. 

1  The  Journal,  Acts  and  Proceed- 
ings were  printed  at  Boston,  1819. 


The  Journal  was  reprinted  in  1830 
as  vol.  iv  of  1st  ed.  of  Elliott's  De- 
bates. 
*  J.  Q.  Adams,  Memoirs,  iv,  385. 


M 


INTRODUCTORY 


the  iyth  of  September,  1787,  framed  the  present  Constitution 
of  the  United  States,  and  recommended  it  to  be  laid  by  the 
Congress  before  the  several  states,  to  be  by  them  considered 
and  ratified,  in  conventions  of  the  representatives  of  the  peo- 
ple, to  be  called  for  that  purpose."  *  Nothing  more  was  said  by 
one  of  the  most  cultured  jurists  of  that  epoch  as  to  the  origin  of 
the  "wholly  novel  theory"  of  federal  government,  described  by 
Tocqueville  five  years  before  as  "a  great  discovery  in  modern 
political  science"  which  had  "produced  the  most  momentous 
consequences."  The  midnight  was  still  deep  indeed. 

Not  until  sixty-seven  years  after  the  adjournment  of  the   George  Tick- 
Federal  Convention  did  an  American  attempt  to  write  the  ™r  Curtls» 
"History  of  the  Origin,  Formation,  and  Adoption  of  the  Con- 
stitution of  the  United  States."  That  attempt,  made  by  Mr. 
George  Ticknor  Curtis  in  1854,  opens  with  the  statement  that 
"A  special  history  of  the  origin  and  establishment  of  the  Con- 
stitution of  the  United  States  has  not  yet  found  a  place  in  our 
national  literature."  2  When  we  look  into  that  first  effort  for 
light  as  to  the  origin  of  the  "wholly  novel  theory"  of  federal 
government  we  are  told,  in  a  description  of  conditions  imme- 
diately preceding  the  meeting  of  the  Convention,  that  "The 
idea  of  a  Union  founded  on  the  direct  action  of  the  people  of  the 
states,  in  a  primary  sense,  and  proceeding  to  establish  a  federal 
government,  of  limited  powers,  in  the  same  manner  in  which 
the  people  of  each  state  had  established  their  local  constitu- 
tions, had  not  been  publicly  broached,  and  was  not  generally 
entertained."  3   That  statement  was  made  in  the  teeth  of  the 
fact  that  four  years  before,  as  early  as  February  16,  1783, 
Pelatiah_JWebster  had  piifclfchpH  at  Philadelphia  at  foe  very    peiatiah 
doors  of  Congress  a  pamphlet  of  forty-seven  pa^es.  not  onty   Webster's 
discussing  publicly  the^n±irp  sijhjprt,  ftut  putting  forth  as  his  ^^nta! 
invention  the  vitalsof  the  new_system  adopted  at  Philadelphia  Convention," 
in  1787.   Mr.  rwtisjgjla  us  that  "The  first  public  proposal 

by  Mr 


I?81 


one  Peiatiah  Webster,  whom  he  calls  '  an  ableT  though  not  con- 
spicuous citizen,  and  who  made  this  suggestion  in  a  pamphlet 
published  in  May.  iy8iv  Recentjreseajrches  have  nnt  added  to 
our  knowledge  of  thi$  writer."4  If  those  researches  had  been 


1  Page  34.     ., 

*  First  words  of  the  preface. 


'  Vol.  i,  p.  373. 

4  Ibid.,  p.  350,  note  3. 


8 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Curtis's  misty 
platitude. 


a  little  more  diligent,  Mr.  Curtis  would  have  found  the  epoch- 
making  paper  of  February  16,  1783,  which  would  have  saved 
him  from  the  confession  that  he  really  had  nothing  to  offer  as 
an  explanation  of  the  origin  of  the  new  system  whose  history 
he  was  the  first  to  write.  His  only  contribution  to  the  question 
of  questions  is  this:  "The  Constitution  of  the  United  States 
was  eminently  the  creature  of  circumstances;  —  not  of  circum- 
stances blindly  leading  the  blind  to  an  unconscious  submission 
to  an  accident,  but  of  circumstances  which  offered  an  intel- 
ligent choice  of  the  means  of  happiness,  and  opened,  from  the 
experience  of  the  past,  the  plain  path  of  duty  and  success, 
stretching  onward  to  the  future."  *  While  Mr.  Curtis  declined 
to  restate  the  "  Inspiration  Theory  "  in  clear  and  definite  terms, 
he  admitted  negatively  by  that  misty  and  pointless  platitude 
that  he  had  nothing  whatever  to  substitute  for  it. 

Bancroft,  1882.  In  1 882  the  Hon.  George  Bancroft  published  his  "History 
of  the  Formation  of  the  Constitution  of  the  United  States  of 
America/'  in  two  volumes,  devoted  to  the  proceedings  of  the 
Federal  Convention  of  1787,  and  the  events  out  of  which  it 
arose.  By  that  time  the  midnight  had  begun  to  break  a  little. 
Bancroft  had  heard  not  only  of  Pelatiah  Webster's  call  for  a 
Continental  Convention  to  make  an  entirely  new  Constitution, 
put  forth  in  1781,  but  also  of  the  great  paper  of  February  16, 
1783,  to  which  he  refers  in  these  terms:  "The  public  mind  was 
ripening  for  a  transition  from  a  confederation  to  a  real  govern- 
ment. Just  at  this  time  Pelatiah  Webster,  a  graduate  of  Yale 
College,  in  a  dissertation  published  at  Philadelphia,  proposed 
for  the  legislature  of  the  United  States  a  Congress  of  two 
houses  which  should  have  ample  authority  for  making  laws  '  of 
general  necessity  and  utility,'  and  enforcing  them  as  well  on 
individuals  as  on  states.  He  further  suggested  not  only  heads 
of  executive  departments  but  judges  of  law  and  chancery.  The 
tract  awakened  so  much  attention  that  it  was  reprinted  in 
Hartford,  and  called  forth  a  reply." 2  If  Bancroft  ever  read  as 
a  whole  the  great  document  in  question  —  an  assumption  his 
vague  and  trivial  reference  to  it  goes  far  to  rebut  —  he  entirely 
missed  the  path-breaking  concept  with  which  it  opens  and 
upon  which  its  importance  depends.  He  makes  no  reference 
whatever  to  Webster's  proposal  of  a  self-sustaining  federal 
1  Curtis,  i,  382.  a  Bancroft,  i,  86.. 


Reference  to 
paper  of  Feb. 
16,  1783. 


Failure  to 
grasp  its 
meaning. 


I.]  INTRODUCTORY  g 

system  with  the  sovereign  power  to  tax,  —  a  power  never  pos- 
sessed before  by  any  federal  government  in  the  world's  history. 
But  if  Bancroft,  who  was  a  layman  not  a  jurist,  failed  to  per- 
ceive that  in  Webster's  invention  originated  the  "wholly  novel 
theory"  described  by  Tocqueville,  he  did  realize  the  import- 
ance of  the  "plans,"  carefully  prepared  beforehand,  through 
which  the  "great  discovery  in  modern  political  science"  passed 
from  the  inventor  to  the  Convention  itself.  And  yet  he  fell 
into  grave  confusion  as  to  the  history  of  those  plans,  the 
second  of  which  he  called  the  "  Connecticut  plan,"  prepared,  he  His  so-called 
says,  at  Philadelphia  by  Roger  Sherman  before  the  iQth  of  "Connecticut 
June,  and  supported  by  the  entire  Connecticut  delegation.1 
The  author  has  had  occasion  long  ago  to  demonstrate  from  the 
records  that  the  so-called  "Connecticut  plan"  had  no  exist- 
ence outside  of  Bancroft's  imagination ;  that  no  such  plan  was 
ever  offered  by  Roger  Sherman  in  the  Convention,  or  sup- 
ported therein  by  the  delegates  from  Connecticut.2  Bancroft  Far  afield  as  to 
was  also  far  afield  as  to  the  history  and  importance  of  the  pinckney  plan. 
Pinckney  plan.  Since  his  death,  Professor  Jameson  and  ex- 
Chief-Justice  Nott  have,  in  a  luminous  and  convincing  way, 
demonstrated  the  genuineness  of  the  copy  of  that  all-important 
plan  furnished  by  Pinckney  to  the  Secretary  of  State  in  1818. 
While  establishing  the  fact  that  the  Pinckney  plan  was  really 
the  most  important  before  the  Convention,  these  two  special 
workers  have  lifted  from  the  brilliant  record  of  the  young 
South  Carolina  statesman  a  dark  cloud  which  has  rested  upon 
it  most  unjustly  for  nearly  a  century.  In  indulging  in  these 
criticisms  the  author  has  no  desire  whatever  to  discredit  the 
work  of  Bancroft,  which  is  excellent  and  helpful  in  many  partic- 
ulars. His  one  purpose  is  to  emphasize  the  fact  that  we  are 
now  only  upon  the  threshold  of  the  study  of  the  history  of  the  Study  of 
American  Constitution ;  the  documents  upon  which  that  his-  constitution 
tory  depends  are  just  being  assembled  by  the  source- workers  just  begun, 
(what  the  Germans  call  Quellenstudien) ,  who  are  striving  to 
extract  from  them  their  real  significance.  Only  by  that  ra- 
tional and  painstaking  process  can  we  hope  to  rescue  the  true 

1  He   plumed   himself   upon   his  2  See  the  author's  article,  entitled 

supposed  discovery  of  this   purely  "A  Bancroftian  Invention,"  in  the 

imaginary    plan  described    in    his  Yale   Law  Journal   for  December, 

preface  (p.  vi)  and  twice  in  vol.  ii,  1908. 
pp.  36,  89. 


10 


THE  AMERICAN  CONSTITUTION 


[CH. 


First  Consti- 
tution servile 
copy  of  an- 
cient type 
of  league. 


Drafted  by 
Franklin  and 
Dickinson. 


Within  ten 
years  great 
invention 
made. 


Absurd 
theory  of 
its  origin. 


account  of  the  greatest  political  event  in  the  world's  history 
from  the  twilight  of  fable  by  which  it  has  been  too  long 
obscured. 

After  the  completion  of  "The  Origin  and  Growth  of  the 
English  Constitution,"  the  author  took  up  the  investigation 
of  "The  Origin  and  Growth  of  the  American  Constitution"  at 
the  point  at  which  Bancroft  had  left  it.  In  dealing  with  the  dis- 
tinctively federal  part  of  the  system  he  perceived  at  once  that 
our  first  Federal  Constitution  as  embodied  in  the  Articles  of 
Confederation  was  simply  a  servile  copy  of  that  ancient  type 
of  a  federal  league  whose  monotonous  history  extends  without 
material  variation  from  the  Greek  confederations  down  to  the 
rise  of  the  Seven  United  Provinces  of  the  Netherlands,  whose 
articles  of  association  were  taken  as  the  standard  for  imitation. 
Franklin,  who  made  the  first  draft  of  the  Articles  in  1775,  and 
Dickinson  the  second  in  1776,  showed  no  fertility  of  resource 
whatever.  They  simply  reproduced  the  antiquated  form  of  a 
federal  league  with  no  federal  executive,  no  federal  judiciary, 
with  all  federal  powers  vested  and  confused  in  a  one-chamber 
assembly  devoid  of  the  power  to  tax  and  devoid  of  jurisdiction 
over  individuals,  —  an  assembly  in  which  every  state,  great 
and  small,  had  one  vote.  Such  was  the  nature  of  the  league 
adopted  by  Congress  in  November,  1777,  and  recommended  to 
the  states.  Just  ten  years  later  emerged  from  the  Federal  Con- 
vention at  Philadelphia  the  entirely  unique  system,  different 
in  every  vital  particular  from  the  first,  and  described  by 
Tocqueville  as  "a  great  discovery  in  modern  political  science." 
Thus  it  is  evident  that,  within  a  period  of  ten  years,  some  man 
or  body  of  men  made  a  great  discovery  or  invention  that  has 
revolutionized  federal  government  not  only  in  this  country 
but  throughout  the  world.  Certainly  in  regard  to  the  origin  of 
what  is  perhaps  the  most  important  political  invention  in  the 
world's  history  there  should  be  at  least  a  theory.  And  yet  the 
marvel  is  that  there  has  been  heretofore  scarcely  anything  that 
could  be  called  a  theory.  When  the  essence  of  everything  said 
by  the  expounders,  native  and  foreign,  on  the  point  at  issue 
has  been  extracted  the  result  may  be  formulated  in  this  wise : 
At  some  time  during  the  eighty-six  working  days  of  the  Con- 
vention there  was  evolved  through  a  process,  probably  super- 
normal, from  the  combined  brains  of  eminently  wise  men, 


U  INTROD  UCTOR  Y  1 1 

called  by  Jefferson  "an  assembly  of  demigods,"  the  entirely 
new  creation  fully  armed,  just  as  Pallas  was  evolved  from  the 
brain  of  Jove.  In  prefacing  the  miraculous  event  Bancroft  in-  Bancroft's 
dulges  in  this  rhapsody:  "Do  nations  float  darkling  down  the  rhaPsody- 
stream  of  the  ages  without  hope  or  consolation,  swaying  with 
every  wind  and  ignorant  whither  they  are  drifting?  or,  is  there 
a  superior  power  of  intelligence  and  love,  which  is  moved  by 
justice  and  shapes  their  course?  From  the  ocean  to  the  Ameri- 
can outposts  nearest  the  Mississippi  one  desire  prevailed  for 
a  closer  connection,  one  belief  that  the  only  opportunity  for  its 
creation  was  come."  *  As  a  companion  piece  should  be 
repeated  here  the  "illustration"  of  that  peculiar  state  of  mind 
used  by  Von  Hoist:  "It  was  God's  saving  gift  to  a  distracted 
and  imperiled  people.  It  was  his  fiat  over  a  weltering  chaos: 
'Let  a  nation  be  born  in  a  day.'"  After  a  twentieth-century 
mind  trained  in  the  historical  school  has  been  sickened  by  that 
kind  of  literature,  whose  mediaeval  flavor  suggests  the  "Faust- 
book"  from  which  Goethe  drew  the  supernormal  parts  of  his 
immortal  epic,  the  practical  question  recurs:  Is  there  the  Was  the  in- 
slightest  evidence  that  the  "great  discovery,"  the  "wholly  ^tertLTot6- 
novel  theory"  was  created  or  evolved  after  the  "assembly  of  ventionmet? 
demigods"  actually  met  for  business?  The  answer  is  that  there 
is  quite  a  volume  of  clear,  explicit,  and  detailed  documentary 
evidence,  collated  in  the  appendices  hereto,  and  absolutely 
uncontradicted  in  any  particular,  that  the  "great  discovery" 
was  not  only  made  years  before  the  Convention  met,  but  that 
it  was  taken  there  carefully  formulated  in  three  prearranged 
"plans,"  two  of  which  were  presented  during  the  first  moments 
of  the  first  day  the  Convention  met  for  real  business.  If  the 
reader  will  turn  to  Appendix  xn,  he  will  find  the  Virginia 
plan,  with  Madison's  three  letters,  the  preparation  of  which 
began  nearly  a  year  before  the  Convention  met.  If  he  will  turn 
to  Appendix  xm,  he  will  find  the  elaborate  plan  or  "system" 
worked  out  by  Charles  Pinckney  at  Charleston  and  described 
in  his  "Observations"  months  before  his  departure  from  that 
city.  If  he  will  look  to  Appendix  xiv,  he  will  find  Hamilton's 
plan  worked  out  beforehand  so  elaborately  as  a  constitution 
that  it  might  have  gone  into  effect  the  next  day  if  it  had  been 
adopted.  When  we  add  to  these  three  plans,  identical  in  all 

1  Vol.  ii,  p.  3. 


12 


THE  AMERICAN  CONSTITUTION 


[Cn. 


A  preposter- 
ous assump- 
tion. 


Only  three 
plans  taken  to 
Convention. 


Plans  of  Madi- 
son and  Pinck- 
ney  instantly 
presented. 


Plans  identical 
in  all  vital  par- 
ticulars. 


vital  particulars,  and  carefully  elaborated  months  before  the 
Convention  met,  the  great  paper  of  February  16,  1783,  of 
which  the  plans  were  simply  restatements,  we  have  a  body 
of  documentary  evidence  setting  forth  "the  great  discovery  in 
modern  political  science"  in  four  distinct  and  dogmatic  forms. 
In  the  face  of  such  a  mass  of  evidence,  just  as  authentic  as  the 
Constitution  itself,  the  theory  or  conceit  that  the  great  discov- 
ery was  made  after  the  Convention  met  is  simply  preposterous. 
As  stated  already,  that  purely  fanciful  assumption,  which  may 
be  described  generally  as  the  "Inspiration  Theory,"  was  the 
outcome  of  the  half-century  of  mystery  during  which  a  ma- 
sonic secrecy  shrouded  what  actually  occurred  within  the  Con- 
vention itself. 

There  were  only  three  plans  of  a  new  system  of  federal  gov- 
ernment taken  to  the  Convention,  —  the  three  so  elaborately 
worked  out  by  Madison,  Pinckney,  and  Hamilton  months 
before  their  departure  for  Philadelphia.  If  any  member  of  the 
Convention  was  the  author  of  the  "new  discovery,"  it  was  one 
of  these  three,  —  no  kind  of  a  claim  in  that  regard  can  possibly 
be  set  up  in  favor  of  any  other  member.  Thus  it  appears  from 
the  documentary  evidence  that  the  idea  that  the  new  invention 
emerged  from  the  brains  of  many,  in  some  supernormal  way, 
after  the  Convention  met,  is  a  pure  chimera  distilled  during 
that  half -century  of  mystery  in  which  the  records  were  under 
seal.  The  moment  the  Convention  was  organized  its  first  act  of 
business  was  the  formal  reception  of  the  two  plans  drafted  by 
Madison  and  Pinckney,  in  which  "the  great  discovery  "  was  not 
only  explicitly  set  forth  in  every  vital  part,  but  worked  by  the 
hand  of  Pinckney  into  what  he  called  in  presenting  it  "a  sys- 
tem" of  government.  From  that  moment  to  the  day  of  ad- 
journment, the  single  question  before  the  Convention  was  this: 
"In  what  way  and  to  what  extent  shall  'the  great  discovery* 
as  embodied  in  the  prearranged  plans  be  so  modified  and 
amended  as  to  adapt  it  to  then  existing  conditions  as  a  work- 
ing system  of  government?"  To  the  attainment  of  that  one 
mighty  end  the  entire  wisdom  of  the  assembly  was  devoted 
from  May  29,  the  day  upon  which  the  plans  were  presented, 
to  September  17,  the  day  of  adjournment. 

An  inspection  of  the  three  prearranged  plans,  drafted  so 
carefully  by  Madison,  Pinckney,  and  Hamilton,  and  printed 


I.]  INTRODUCTORY  13 

side  by  side  in  the  appendices,  will  reveal  the  fact  that  each  one 
embodied  in  its  own  way  every  element  of  "the  great  inven- 
tion," which  consisted  of  a  proposal  (i)  of  a  federal  govern- 
ment with  the  independent  power  to  tax;  (2)  of  a  federal  gov- 
ernment divided  into  three  departments,  legislative,  executive, 
and  judicial;  (3)  of  a  federal  legislature  with  two  chambers; 
(4)  of  a  supreme  federal  judiciary;  (5)  of  a  federal  government 
operating  not  on  states  as  corporations,  but  directly  on  indi- 
viduals. Down  to  the  time  of  the  drafting  of  the  Articles  of 
Confederation,  into  which  no  one  of  those  principles  entered, 
had  any  one  ever  heard  of  a  federal  government  blessed  by 
the  presence  of  any  one  of  them?  Before  the  Federal  Convention 
of  1787  met,  "the  great  discovery  in  modern  political  science" 
had  certainly  been  made  by  somebody,  because  we  find  it 
worked  out  in  great  detail  in  the  three  prearranged  plans  taken 
by  Madison,  Pinckney,  and  Hamilton  to  the  Convention  as  the 
basis  of  its  action.  As  the  evidence  is  all  documentary,  there  is 
no  room  for  cavil  or  question  on  that  point.  So  the  single  ques-  Were  they 
tion  to  be  answered  —  a  question  the  author  was  the  first  to  drawn  from 

&  common 

propound  —  is  this :  Were  the  three  prearranged  plans,  identi-  source  ? 
cal  in  every  vital  particular,  drawn  from  a  common  source,  or 
were  the  authors  of  them,  working  in  isolation  and  far  apart, 
inspired,  at  or  about  the  same  moment,  to  make  an  identical 
invention  for  which  the  world  had  been  waiting  for  centuries? 
If  they  were  so  inspired,  the  old  "Inspiration  Theory"  must 
be  put  to  a  more  severe  test  than  that  to  which  it  was  origin- 
ally subjected.  Fortunately  at  this  point  the  need  of  super- 
normal aid  is  greatly  lessened  by  the  fact  that  neither  Madison, 
Pinckney,  nor  Hamilton,  and,  so  far  as  the  author  knows,  no 
biographer  in  their  behalf,  ever  claimed  that  any  one  of  them 
was  the  author  of  "the  great  invention."  If  any  one  of  them 
had  ever  claimed  such  authorship,  it  would  have  put  him  at 
once  at  the  throats  of  the  other  two,  a  conflict  that  never 
existed. 

On  February  16,  1783,  Pelatiah  Webster  —  a  great  polit-  Epoch-making 
ical  economist  and  retired  financier,  the  Adam  Smith  of  that 
epoch,  a  graduate  of  Yale,  a  patriot  in  the  Revolutionary 
cause,  then  a  mature  thinker  of  fifty-seven,  better  equipped  per- 
haps than  any  other  man  in  the  country  to  deal  with  the  vital 
question  of  taxation  involved — published  at  Philadelphia,  at 


THE  AMERICAN  CONSTITUTION 


[CH. 


Madison's 
testimony. 


Imperfect 
records  of 
votes  and 
debates. 


the  very  doors  of  the  Continental  Congress,  in  a  pamphlet  of 
forty-seven  pages,  "the  great  discovery  in  modern  political 
science,"  which  was  carried  to  the  Federal  Convention  of  1787 
in  the  three  plans  prepared  by  Madison,  Pinckney,  and  Ham- 
ilton. At  the  moment  that  publication  was  made,  Madison 
and  Hamilton,  then  young  men  of  thirty-two  and  twenty-six 
respectively,  were  in  Philadelphia  as  members  of  the  Congress 
in  which  Charles  Pinckney,  then  twenty-five,  took  his  seat  soon 
afterwards.  Even  when  the  three  plans  drafted  by  Madison, 
Pinckney,  and  Hamilton  are  taken  as  one  document,  they  pre- 
sent the  great  discovery  in  much  less  detail  than  the  original  in 
which  it  was  proclaimed.  After  the  adjournment  of  the  Fed- 
eral Convention,  Webster  republished  his  paper  with  copious 
notes,  restating  his  claims  and  appealing  to  posterity  for 
justice.  As  Madison  frankly  states,  Pelatiah  Webster  was  the 
first  to  propose,  as  early  as  1781,  in  one  of  his  financial  essays, 
published  at  Philadelphia  in  May  of  that  year,  the  calling  of 
"a  Continental  Convention  "  1  for  the'making  of  an  entirely  new 
Constitution.  Whether  any  direct  reference  was  made  to  that 
proposal,  or  to  the  contents  of  the  great  paper  of  February  16, 
1783,  during  the  prolonged  debates  that  took  place  in  the  secret 
conclave  of  1787,  we  can  never  know,  as  reporters  from  with- 
out were  excluded,  and  reporters  that  worked  within  have 
preserved  only  partial  and  inaccurate  statements  of  what  was 
actually  said  and  done.  The  most  careful  student  of  the 
records  declares  that  we  do  not  know  for  certain  even  what 
votes  were  taken  on  particular  questions.  To  use  his  own 
words:  "  In  view  of  these  mistakes,  and  because  of  the  suspicion 
that  would  rest  upon  notes  so  carelessly  kept  as  were  the 
minutes  of  the  secretary,  the  printed  'Journal'  cannot  be 
relied  on.  The  statement  of  questions  in  the  great  majority 
of  cases  is  probably  accurate,  but  the  determination  of  those 
questions,  and  in  particular  the  votes  upon  them,  require  con- 
firmation or  can  be  accepted  only  tentatively."  2  The  frag- 
mentary reports  of  the  speeches  that  survive  are  vastly  less 
complete  and  reliable  of  course  than  the  Journal  itself.  When 
in  1821  Yates  printed  his  notes  in  full,  Madison  pronounced  the 
document  to  be  "not  only  a  very  mutilated  but  a  very  errone- 

1  Madison  Papers,  ii,  706-7.  *  Max  Farrand,  Records   of  the 

Federal  Convention,  49-50. 


I.]  INTRODUCTORY  15 

ous  edition  of  the  matter  to  which  it  relates";1  and  J.  C. 
Hamilton  warns  us  that  Madison's  report  of  his  father's  great 
speech  delivered  on  June  18  is  only  a  very  imperfect  frag- 
ment.2 Madison  has  preserved  only  about  three  thousand 
words  of  a  speech  that  occupied  more  than  five  hours  in  its 
delivery.  If  we  possessed  the  full  text  of  that  elaborate  ex- 
position, reviewing  no  doubt  the  entire  subject,  we  might  find 
frequent  references  by  Alexander  Hamilton  to  the  work  of 
Pelatiah  Webster,  with  whom  he  was  in  official  contact  as  Full  text  might 
a  member  of  the  Continental  Congress  at  the  very  moment  disclose  fre- 

.       .  -  _,  ,  •  '«•«.«  quent  reference 

when  the  document  of  February  16,  1783,  was  published  at  the  to  Webster. 
very  doors  of  that  body.  Whether  any  direct  reference  was 
made  during  the  four  months  of  debate  to  that  document  is, 
however,  of  no  special  significance,  as  such  reference  could 
neither  increase  nor  decrease  its  authenticity  and  its  import- 
ance. It  is  sufficient  for  us  to  know  that  when  the  three 
restatements  of  its  contents,  as  prepared  by  Madison,  Pinck- 
ney,  and  Hamilton,  are  placed  in  juxtaposition  with  it,  the 
problem  involved  in  the  authorship  of  the  plans  is  solved  with 
the  precision  of  a  mathematical  demonstration. 

The  author  was  the  first  to  work  out  that  problem  simply  Only  a  vacuum 
because  he  was  the  first  to  undertake  it.  It  really  involved  no  to  be  fiUed- 
great  amount  either  of  study  or  research;  there  was  really  no 
opposing  theory,  worthy  of  the  name,  to  overthrow,  —  it  was 
simply  a  question  of  filling  a  vacuum,  of  removing  a  set  of 
misty  legends  which  were  no  credit  to  our  historical  scholar- 
ship. No  great  subject  was  ever  so  shamefully  neglected. 
Some  aid  may  have  been  derived  by  the  author  from  long 
study  of  the  processes  through  which  Kemble,  Palgrave, 
Stubbs,  and  Freeman  have,  in  recent  years,  extricated  from 
the  jungle  of  fable  the  beginnings  of  English  constitutional 
history.  That  work  was  never  undertaken  in  earnest  until  1839, 
when  Kemble  began  the  publication  of  his  "Codex  Diplomati- 
cus,"  whereby  "upwards  of  fourteen  hundred  documents,  con- 
taining the  grants  of  kings  and  bishops,  the  settlements  of 
private  persons,  the  conventions  of  landlords  and  tenants,  the 
technical  forms  of  judicial  proceedings,  have  been  placed  in  our 
hands."  Such  inquiries  all  turn  upon  a  critical  examination  of 

1  Doc.  Hist,  of  the  Constitution,  v,          2  Life  of  Alexander  Hamilton,  ii, 
308-312.  489-490. 


16 


THE  AMERICAN  CONSTITUTION 


[Cn. 


"History  is 
studied  from 
documents." 


Work  of  the 

master 
builders. 


Need  no  fame 
that  belongs 
to  another. 


documents.  To  repeat  the  words  of  Langlois:  "  History  is 
studied  from  documents.  Documents  are  the  traces  which 
have  been  left  by  the  thoughts  and  actions  of  men  of  former 
times. . . .  There  is  no  substitute  for  documents;  no  documents, 
no  history."  l  With  the  richest  accumulation  of  historical 
records  in  all  Europe  —  "whether  we  consider  them  in  relation 
to  antiquity,  to  continuity,  to  variety,  to  extent,  or  to  ampli- 
tude of  facts  and  details"2  —  mouldering  beneath  their  feet, 
English  historical  scholars  permitted  the  beginnings  of  the 
English  Constitution  to  remain  a  sealed  book  down  to  a  time 
within  the  memory  of  men  still  living.  And  so  we  have  per- 
mitted the  beginnings  of  the  American  Constitution  to  remain 
a  sealed  book,  with  the  "Inspiration  Theory"  as  its  clasp, 
despite  the  fact  that  the  clearest  and  most  formal  of  all  docu- 
mentary evidence  as  to  the  truth  was  easily  accessible. 

The  author  desires  here  to  repeat  the  statement  made  in  the 
preface  that  the  influence  of  the  great  document  of  February 
16,  1783,  does  not  extend  beyond  the  work  of  the  Federal 
Convention  of  1787,  —  except  in  one  important  particular  it 
sheds  no  new  light  on  the  after  history.  He  also  desires  to 
anticipate  here  this  statement :  "And  yet  after  all  has  been 
said,  the  fact  remains  that  the  master  builders,  who  trans- 
formed under  the  most  difficult  circumstances  possible  the 
dream  of  the  great  architect  into  a  working  system  of  govern- 
ment, achieved  a  result  just  as  remarkable  as  the  invention 
itself.  The  philosophers,  statesmen,  jurists,  warriors,  experi- 
enced men  of  affairs,  who  composed  the  august  assembly 
that  wrought  at  Philadelphia  in  1787,  may  be  compared,  as 
to  genius  and  learning,  with  the  master  spirits  of  any  age 
.  .  .  they  need  no  fame  that  belongs  to  another."  While  the 
epoch-making  achievement  of  Pelatiah  Webster  must  forever 
stand  forth  as  a  beacon  light  in  the  world's  political  history, 
so  far  as  this  book  is  concerned,  it  is  a  mere  episode,  simply 


1  "L'histoire  se  fait  avec  des 
documents.  Les  documents  sont  les 
traces  qu'ont  Iaiss6es  les  pensees  et 
les  actes  des  hommes  d'autrefois. 
.  .  .  Car  rien  ne  supplee  aux  docu- 
ments :  pas  de  documents,  pas 
d'histoire."  Introduction  aux  etudes 
historiques,  par  Ch.-V.  Langlois  — 


Ch.  Seignobos,  2d  ed.,  p.  I,  Paris. 
2  The  words  of  Sir  Francis  Pal- 
grave,  under  whose  auspices  as  de- 
puty keeper  the  public  records  were, 
in  1858,  finally  brought  together 
under  the  roof  of  the  present  Record 
Repository. 


I.]  INTRODUCTORY  17 

one  link  in  a  long  chain  of  causation.  The  publication  and  dis- 
tribution by  Congress  of  the  great  document,  with  the  author's 
commentary  upon  it,  has  done  much  already  to  remove  false 
impressions  of  long  standing.  And  yet  there  is  still  here  and 
there  an  ancient  jurist  or  statesman,  whose  mind  has  ceased  to 
be  receptive  of  new  facts,  who  resents  any  attempt  to  disturb 
the  illusions  of  his  earlier  years.  Pelatiah  Webster's  alma 
mater j  the  University  of  Yale,  still  treats  with  scornful  silence 
the  fame  of  her  immortal  son.  In  all  this  there  is  nothing  out 
of  the  usual  course.  The  achievements  of  contemplative  men, 
especially  when  they  are  far-reaching,  have  often  had  to  wait 
for  a  long  time  for  full  recognition.  Not  until  after  the  lapse 
of  two  hundred  years  was  it  admitted  that  Velasquez  was 
one  of  the  mightiest  painters  the  world  had  ever  known;  it 
was  quite  as  long  perhaps  before  Shakespeare,  as  a  world- 
poet,  was  permitted  to  enter  into  the  full  possession  of  his 
kingdom. 


'CHAPTER  II 

THE  GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE 

Evolution  and        AFTER  a  thousand  years  of  persistent  development  in  an 

conscious  crea-    jsianci  World  the  dominant  state  in  Britain  known  as  England 
tion  contrasted.  e     t  . 

reproduced  itself  in  each  of  the  thirteen  colonial  common- 
wealths out  of  whose  union  arose  the  Federal  Republic  of  the 
United  States.  Just  as  these  preexisting  commonwealths  were 
the  natural  products  of  a  political  evolution,  so  the  Federal 
Union  into  which  they  finally  entered  is  an  artificial  and 
entirely  novel  creation  without  a  precedent  in  history.  Mr. 
Gladstone  graphically,  perhaps  unconsciously,  portrayed  the 
basic  difference  in  origin  between  the  two  systems,  state  and 
federal,  when,  in  a  well-worn  phrase,  he  said:  "As  the  British 
Constitution  is  the  most  subtile  organism  which  has  proceeded 
from  progressive  history,  so  the  American  Constitution  is  the 
most  wonderful  work  ever  struck  off  at  a  given  time  by 
the  brain  and  purpose  of  man." 

Why  the  Tocqueville  was  wise  when  he  said  that  "To  examine  the 

beaf£tSstudd      un*on  before  we  have  studied  the  states  would  be  to  adopt 
led.  a  method  filled  with  obstacles.  .  .  .  The  great  political  prin- 

ciples which  now  govern  American  society  undoubtedly  took 
their  growth  in  the  state."  1  The  political  substructure  of 
every  American  state  is  that  "subtile  organism  which  has  pro- 
ceeded from  progressive  history,"  properly  described  not  as  the 
British  but  as  the  English  Constitution,  because  it  is  the  con- 
stitution of  that  single  state  in  Britain  known  as  England 
which  has  reproduced  itself  in  a  somewhat  modified  form  in 
the  constitution  of  every  state,  old  and  new,  of  the  American 
Union.  When  the  tie  of  political  dependence  that  bound  the 
colonies  to  the  mother  country  was  severed,  the  English  pro- 
vinces in  America  rose  to  the  full  stature  of  sovereign  states. 
Taney's  defini-  As  Chief  Justice  Taney  has  expressed  it:  "When  the  Revolu- 
tion of  state  tion  took  piace  the  people  of  each  state  became  themselves 

sovereignty . 

sovereign  " ;  and  so  soon  as  they  "took  into  their  own  hands  the 
1  Democracy  in  America  (Bowen's  ed.),  i,  73,  74. 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  19 

powers  of  sovereignty,  the  prerogatives  and  regalities  which 
before  belonged  either  to  the  Crown  or  the  Parliament,  became 
immediately  and  rightfully  vested  in  the  state."  l  Thus  every 
student  of  the  American  Constitution  is  forced  to  begin  with  an 
inquiry  into  the  origin  and  growth  of  the  Constitution  of  that 
state  in  Britain  we  call  England  whose  foundations  were  laid  by 
the  Teutonic  invaders  who,  between  the  middle  of  the  fifth  cen- 
tury and  the  end  of  the  sixth,  built  up  in  Britain  "a  Germany 
outside  of  Germany."  2  Out  of  the  Teutonic  settlements  thus 
made  finally  arose  the  consolidated  Kingdom  of  England  Consolidated 
which  represents  an  aggregation  of  shires ;  the  shire  an  aggre- 
gation  of  hundreds ;  the  hundreds  an  aggregation  of  townships. 
Upon  the  substructure  thus  made  up  of  local,  self-governing 
communities  the  English  political  system  has  ever  depended 
for  its  permanency,  its  elasticity,  its  enduring  power.  In  every 
one  of  these  communities  the  idea  of  local  self-government  was 
intensely  developed,  and  in  each  were  embedded  the  germs  of 
the  representative  system.  And  from  the  tendency,  conscious 
or  unconscious,  upon  the  part  of  Englishmen  to  reproduce 
these  self-governing  communities  in  other  lands  has  resulted 
the  ascendancy  and  power  of  the  English  nation  as  a  colonizing 
nation. 

When  the  offspring  is  compared  with  the  parent,  when  the  Offspring 
English  state  in  America  is  compared  with  the  English  state 
in  Britain,  the  resemblance  is  too  close  for  the  relationship  to 
escape  the  most  careless  observer.  In  both,  the  political  sub- 
structure is  the  same  —  the  ancient  Teutonic  system  of  local, 
self-governing  communities  composed  of  the  township,  the 
hundred,  and  the  shire.  In  each,  municipal  organization  rests 
upon  substantially  the  same  foundation.  So  far  as  central 
organization  is  concerned,  every  American  state  is  a  mere 
reproduction  of  the  central  organization  of  the  English  king- 
dom with  such  modifications  as  have  resulted,  in  a  widely  dif- 
ferent physical  environment,  from  the  abolition  of  nobility, 
feudality,  and  kingship.  In  the  new  as  in  the  old,  the  central 
powers  of  the  state  are  divided  into  three  departments,  —  legis- 
lative, executive,  and  judicial,  —  which,  in  the  same  qualified 
sense,  are  separate  and  distinct  from  each  other. 

1  Martin  et  al.  v.  The  Lessee  of          2  Taine,  Hist,  of  Eng.  Literature, 
rVaddell,  16  Peters,  410,  416.  i,  50. 


20 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Sources  of 
American 
federal  ideas. 


Requisition 
system. 


Our  first 
Federal  Con- 
stitution. 


When  the  time  came  for  the  English  states  in  America  to 
construct  a  federal  union  on  a  priori  principles,  it  was  impos- 
sible to  derive  any  aid  whatever  from  the  home  land,  for  the 
simple  and  conclusive  reason  that  the  mother  kingdom  was  a 
consolidated  and  not  a  federal  state.  The  founders  of  American 
federalism  were  thus  driven  to  explore,  with  dim  lights  as  com- 
pared with  our  own,  the  histories  of  such  federal  unions  as  had 
existed  in  Greece,  and  such  as  had  grown  up  between  the  Low- 
Dutch  communities  at  the  mouth  of  the  Rhine,  and  between 
the  High-Dutch  communities  in  the  mountains  of  Switzerland 
and  upon  the  plains  of  Germany.  The  meagreness  of  their 
knowledge  as  to  Greek  federalism  is  frankly  confessed  by  both 
Madison  and  Hamilton,  who,  in  speaking  of  the  Achaian 
League,  declare  in  the  "Federalist"  that,  "could  its  interior 
structure  and  regular  operation  be  ascertained,  it  is  probable 
that  more  light  would  be  thrown  by  it  on  the  science  of  federal 
government  than  by  any  like  experiment  with  which  we  are 
acquainted."1  The  fact  is  that  the  only  federal  unions  with  whose 
internal  organizations  the  builders  of  our  Federal  Republic  were 
really  familiar,  and  whose  histories  had  any  practical  effect  on 
their  work,  were  the  Confederation  of  Swiss  Cantons,  the  Seven 
United  Provinces  of  the  Netherlands,  and  the  Germanic  Con- 
federation. The  fundamental  principle  upon  which  all  such 
fabrics  rested  was  the  requisition  system,  under  which  the  fed- 
eral head  was  simply  endowed  with  the  power,  vested  in  a  one- 
chamber  assembly,  to  make  requisitions  for  men  and  money 
upon  the  states  or  cities  composing  the  league  for  federal  pur- 
poses; while  such  states  or  cities,  retaining  the  entire  taxing 
power,  alone  possessed  the  authority  to  enforce  them.  Prior 
to  the  making  of  our  second  Federal  Constitution  of  1787  the 
modern  world  had  never  conceived  of  the  idea  of  a  federal  union 
armed  with  the  power  to  levy  taxes  in  any  form  whatever.  The 
first  attempt  made  by  the  English  states  in  America  to  con- 
struct a  federal  union  was  embodied  in  the  first  Constitution, 
known  as  the  Articles  of  Confederation.  Down  to  that  point 
nothing  new  was  achieved ;  the  fruit  of  the  first  effort  was  sim- 

1  No.  1 8,  Examples  of  Greek  Con-  vations    sur    Vhistoire  de  Grece,  to 

federacies,  is  attributed  to  Hamilton  which  the  writers  of  that  day  seem 

and  Madison.  See  Ford's  Federalist,  to  have  been  chiefly  indebted  for 

1 08,  112.   Reference  is  made  to  the  such  very  imperfect  knowledge  as 

work  of  the  Abbe  Mably,  Obser-  they  possessed  of  Greek  federalism. 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  21 

ply  a  confederation  on  the  old  plan,  with  the  entire  federal 
power  vested  and  confused  in  a  one-chamber  assembly,  which 
could  only  deal,  through  the  requisition  system  with  the  states, 
which  retained  the  entire  taxing  power.  In  their  first  effort 
American  statesmen  exhibited  no  fertility  of  resource  whatever 
in  the  making  of  a  federal  constitution.  Federalism,  which  as 
a  system  of  government  already  stood  low  enough  in  the  estima- 
tion of  mankind,  gained  nothing  from  an  experiment  that  gave 
way  in  the  storm  and  stress  of  a  seven  years'  war.  At  its  close 
the  personality  of  Washington  was  called  upon  to  supply  the 
unity  and  cohesion  our  first  Federal  Constitution  failed  to 
afford.  As  Luzerne  wrote  of  him  to  Vergennes,  at  a  little  later 
time,  "More  is  hoped  from  the  consideration  of  a  single  citizen 
than  from  the  authority  of  the  sovereign  body."  l 

The  original  draft  of  the  Articles  of  Confederation,  made  as  Our  second 
early  as  the  2ist  of  July,  1775,  by  Dr.  Franklin  and  preserved 
in  his  handwriting,2  is  conclusive  documentary  evidence  of  the 
fact  that,  down  to  that  time,  even  the  most  fertile  and  ingen- 
ious mind  of  the  epoch  had  conceived  of  no  advance  upon  the 
ancient  type  of  federal  government  as  it  had  existed  for  at  least 
twenty-five  hundred  years.  Certainly  at  the  time  of  the  mak- 
ing of  our  first  Federal  Constitution  neither  Franklin  nor  any 
other  American  statesman  had  conceived  of  a  federal  system 
armed  with  the  power  to  tax.  Twelve  years  later,  upon  the 
adjournment  of  the  Federal  Convention,  September  17,  1787, 
the  world  was  called  upon  to  inspect  an  entirely  new  system, 
whose  cornerstone  was  the  independent  power  of  taxation, 
coupled  with  machinery  adequate  for  the  enforcement  of  all  its 
mandates.  In  the  words  of  Tocqueville,  the  second  Constitution 
was  based  "  upon  a  wholly  novel  theory  which  may  be  consid-  "The  wholly 
ered  a  great  discovery  in  modern  political  science."  3  When  the  novel  theory- 
masses  of  the  American  people  had  the  opportunity  to  feel  the 
practical  benefits  wrought  in  their  political  condition  by  the 

1  August  4,  1783.  Printed  in  the  lin  to  Congress  on  July  21,  1775, 
Appendix  to  Bancroft's  Hist,  of  the  "though  not  copied  into  their  Jour- 
Const.,  i,  325,  326.  nals,  remaining  on  their  files  in  his 

2  See  Secret  Journals  of  Congress  handwriting." 

(Domestic  Affairs)  2ist  July,  1775,  *  Cette  constitution  .  .  .  repose 

i,  283;   Madison  Papers  (Gilpin  ed.,  eneffet  sur  une  theorie  entierement 

1841),  ii,  688.    (Only  the  Gilpin  edi-  nouvelle,  et  qui  doit  marquer  comme 

tion  will  be  cited.)    Madison  says  une  grande  decouverte  dans  la  sci- 

that  the  plan  submitted  by  Frank-  ence  politique  de  nos  jours." 


22 


THE  AMERICAN  CONSTITUTION 


[CH. 


Common  basis 
of  three  prear- 
ranged plans. 


Madison  and 
the  Virginia 
plan. 


new  system,  they  became  imbued  with  a  sense  of  intense  admi- 
ration ;  they  put  it  upon  a  pedestal  and  made  it  a  popular  idol ; 
as  a  German  historian  l  has  expressed  it,  the  new  Constitution 
soon  passed  through  a  process  of  canonization.  In  the  light 
of  these  facts  it  is  certainly  a  marvel  that  neither  at  the  time  of 
the  invention,  nor  for  a  century  thereafter,  was  there  any  real 
curiosity  manifested  as  to  the  authorship  of  this  "wholly  novel 
theory"  by  which  federalism  as  a  system  of  government  was 
suddenly  transformed.  If  anything  that  may  be  called  a 
theory  ever  existed  on  the  subject  it  was  nothing  more  definite 
than  a  vague  and  general  assumption  that,  at  some  time  during 
the  eighty-six  days  the  Convention  was  actually  at  work,  the 
great  invention  silently,  perhaps  miraculously,  arose  out  of  the 
three  plans  to  whose  consideration  the  debates  were  confined. 
But  that  theory,  if  such  it  may  be  called,  goes  to  wreck  the, 
moment  it  is  confronted  by  the  incontestable  fact  that  each  of 
the  plans  in  which  the  "wholly  novel  theory"  was  embodied 
had  been  carefully  worked  out  and  cast  in  finished  literary 
form  months  before  the  Convention  met.  There  were  but 
four  plans  presented.  That  of  Virginia,  undoubtedly  drafted 
by  Madison;  that  of  Charles  Pinckney;  that  of  Hamilton;  and 
that  of  New  Jersey  drafted  by  Paterson,  which  may  be  en- 
tirely ignored,  as  it  only  proposed  a  revision  of  the  Articles  of 
Confederation.  The  two  first  named,  by  far  the  most  import- 
ant, were  presented  during  the  morning  hour  of  May  29, 
the  day  on  which  the  business  of  the  Convention  actually 
began,  —  with  the  presentation  of  the  plans  of  Virginia  and 
Charles  Pinckney  the  proceedings  were  opened.2  We  know 
that  for  at  least  a  year  beforehand  Madison  was  hard  at  work 
on  the  Virginia  plan.3  In  December,  1786,  we  find  him  in 
active  correspondence  with  Jefferson,  then  at  Paris,  as  to  the 
structure  of  that  plan,4  presented  to  the  Convention  by  Gov- 

son  suggested  that,  "to  enable  the 
federal  head  to  exercise  the  pow- 
ers given  to  the  best  advantage,  it 
should  be  organized,  as  the  particular 
ones  are,  into  legislative,  executive, 
and  judiciary."  Pelatiah  Webster 
had  worked  out  that  problem  in 
great  detail  in  his  paper  of  Feb. 
16,  1783.  It  was  therefore  an  old 
story  in  1786. 


1  Von  Hoist,  i,  64-70. 

2  Madison  Papers,  ii,  728-735. 

8  Cf.  "Preparations  of  Madison 
for  Labors  of  Federal  Convention," 
Rives,  Life  and  Times  of  Madison, 
ii,  208. 

4  Cf.  Letter  of  Jefferson  to  Madi- 
son, Dec.  1 6,  1786,  in  Jefferson's 
Correspondence,  by  T.  J.  Randolph, 
ii,  64,  65.  In  that  letter  Jeffer- 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  23 

ernor  Randolph,  whose  official  dignity  could  give  to  it  a  weight 
Madison's  thirty-six  years  could  not.  At  the  close  of  Ran- 
dolph's presentation  of  the  Virginia  plan,  Charles  Pinckney, 
then  only  twenty-nine,  presented  his  plan.  The  event  is  thus 
recorded  in  the  Minutes  of  Yates:  "  Mr.  C.  Pinckney,  a  member  Pinckney's 
from  South  Carolina,  then  added  that  he  had  reduced  his  ideas  "system-" 
of  a  new  government  to  a  system,  which  he  then  read."  From 
Pinckney's  latest  and  ablest  advocate,  who  claims  that  he 
"alone  formulated  a  constitution  before  the  Convention  met," 
we  learn  of  the  painstaking  care  with  which  his  "system"  had 
been  elaborated  beforehand.  Judge  Nott  tells  us  that  "in  a 
paper  which  will  be  called  briefly  '  The  Observations,'  written  by 
Pinckney  before  he  left  Charleston,  he  sets  forth  at  length  a 
description  of  his  plan  of  government,"  a  task  which  he  had,  for 
some  time  in  advance,  "resolutely  assigned  to  himself."  l  It  is 
equally  certain  that  Hamilton,  then  only  thirty  years  of  age, 
had,  with  even  greater  care,  elaborated  his  plan  beforehand. 
From  his  "  Life  "  by  his  son  we  learn  that  "  In  the  course  of  his 
speech  (which  occupied  five  hours)  he  read  his  plan  of  govern- 
ment, not  the  propositions  which  are  found  in  the  printed  Jour- 
nal, but  'a  full  plan,  so  prepared  that  it  might  have  gone  into  Hamilton's 
immediate  effect  if  it  had  been  adopted.'  This  plan  consisted  "ful1  plan>" 
of  ten  articles,  each  article  being  divided  into  sections."  2  The 
"full  plan,"  to  repeat  the  words  of  Mr.  Lodge,  "does  not  seem 
to  have  been  formally  introduced  in  the  Convention,  but  was 
handed  to  Madison,  who  made  a  copy  of  it."  3  Only  when 
Hamilton's  entire  plan  as  embodied  in  the  two  papers,  equally 
authentic,  has  been  examined  as  a  whole,  is  it  possible  to  under- 
stand how  elaborately  and  deliberately  he  prearranged  the 
scheme  of  federal  government  he  took  with  him  to  Philadel- 
phia. Thus  we  know  for  certain  that  the  "wholly  novel  the- 
ory," as  Tocqueville  has  labeled  the  great  invention,  passed 
into  the  Convention  from  the  three  prearranged  plans  drafted 

1  Cf .  The  Mystery  of  the  Pinckney  Hamilton  handed  to  him  his  larger 

Draught,  by  ex-Chief  Justice  C.  C.  plan.    Madison  Papers,  iii,  appen- 

Nott  (1908),  90,  189,  249,  332.  dix  no.  5,  xvi.   After  making  a  copy 

3  Life  of  Alexander  Hamilton,  by  of  it,  he  returned  it  to  Hamilton.   It 

John  C.  Hamilton,  ii,  490-491.  is  hard  to  understand  why  Madison 

1  The  "full  plan"  is  printed  in  did    not    preserve    a  copy   of  the 

The  Works  of  Alexander  Hamilton,  precious  Pinckney  plan,  not  so  long 

Lodge  ed.,  i,  350-369.    See  also  347  as  Hamilton's, 
for  editor's   note.     Madison    says 


THE  AMERICAN  CONSTITUTION 


[CH. 


From  what 
common  source 
were  the  plans 
derived  ? 


Pelatiah  Web- 
ster's paper  of 
Feb.  16, 1783. 


by  Madison,  Pinckney,  and  Hamilton,  each  of  whom,  while 
working  in  "the  unvexed  silence  of  a  student's  cell,"  made  it 
the  bed-rock  of  his  performance.  Into  each  of  the  three  plans 
the  five  cardinal  principles  that  constitute  the  invention  enter 
as  indispensable  elements.  The  documents  make  it  perfectly 
clear  that  the  three  draftsmen  appropriated  the  "wholly  novel 
theory"  as  common  property,  and  as  such  made  it  the  basis  of 
their  work.  The  assumption  that  a  set  of  new  ideas  so  start- 
ling, so  complicated  as  those  that  constitute  the  great  invention, 
should  have  been  revealed  almost  at  the  same  moment  to  three 
minds  working  in  isolation,  and  far  removed  from  each  other, 
involves  a  miracle  far  more  difficult  of  belief  than  that  which 
tells  us  of  the  turning  of  water  into  wine. 

Knowing,  as  the  older  historians  should  have  known,  that,  in 
this  as  in  every  other  case,  the  work  of  the  Convention  was 
cut  out  beforehand  and  formulated  in  the  three  prearranged 
"plans"  or  "systems,"  it  is  passing  strange  that  no  one  of 
them  ever  took  the  pains  to  ask  and  answer  the  simple  and 
inevitable  question  —  From  what  common  source  did  the  drafts- 
men of  the  prearranged  plans  draw  the  "wholly  novel  theory,"  the 
path-breaking  idea,  which  was  the  basis  of  all  of  them?  That 
simple  and  inevitable  question  was  never  answered  until  a  few 
years  ago,  when  the  author  reprinted,  with  a  commentary,  the 
epoch-making  paper  published  by  Pelatiah  Webster  at  Phil- 
adelphia, February  16,  1783,  and  there  republished  with  notes 
in  1791,  in  which  he  announced  to  the  world,  as  his  invention, 
the  entire  plan  of  the  existing  Constitution  of  the  United  States, 
worked  out  in  detail  more  than  four  years  before  the  Federal 
Convention  of  1787  met.  That  paper,  entitled  "  A  Dissertation 
on  the  Political  Union  and  Constitution  of  the  Thirteen 
United  States  of  North  America,"  whose  lightest  words  are 
weighty,  is  just  as  authentic  as  the  Constitution  itself,  and 
far  more  elaborate.  Two  editions  of  it,  with  the  author's  com- 
mentary, have  been  published  by  Congress.  When  it  was  thus 
reprinted,  after  an  interval  of  one  hundred  and  sixteen  years, 
its  contents  were  as  unknown  to  the  leading  jurists  and  states- 
men of  this  generation  as  if  it  had  been  a  papyrus  from  Egypt 
or  Herculaneum.1  Reluctantly  and  ungraciously  as  its  precious 
revelation  has  been  received  by  many,  it  has  swept  away  once 
1  Many  letters  in  the  author's  hands  attest  that  fact. 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  25 

and  forever  the  impossible  theory  that  the  most  elaborate  and 
unique  of  all  political  inventions  had  no  personal  inventor,  and 
the  still  more  impossible  assumption  that  three  minds,  working 
in  isolation  and  far  removed  from  each  other,  should  have  con- 
ceived, almost  at  the  same  moment,  the  "wholly  novel  theory " 
of  federal  government  for  which  the  world  had  been  waiting  for 
centuries.  The  history  of  no  invention  has  ever  been  pre- 
served in  a  more  detailed,  scientific,  or  authentic  form  than 
that  announced  to  the  world,  as  such,  in  the  now  famous  docu- 
ment of  February  16,  1783.  Taine  has  said  that  "under  every 
shell  there  was  an  animal,  and  behind  every  document  there 
was  a  man."  1  Behind  the  document  in  question  there  was  a  man 
whose  fame  is  destined  to  grow  until  it  becomes  greater  than 
that  of  any  other  contributor  to  "modern  political  science.*' 

In  the  evolution  of  constitutions  things  do  not  happen  in  a  HOW  commerce 
miraculous  way,  — through  it  all  there  runs  the  force  of  causa-  ^P618  wty 

1  of  law. 

tion  working  along  natural  and  practical  lines.  It  was  the 
mercantile  element  in  the  German  cities  that  eventually 
crushed  the  spirit  of  feudalism ;  it  was  the  mercantile  element 
that  opened  the  way  for  the  Imperial  Code  by  first  creating 
a  uniform  system  of  commercial  law.  The  first  modern  effort 
to  give  unity  to  law  in  Germany  was  made,  as  a  prelude  to  the 
movement  for  national  unity,  by  the  general  Bills  of  Exchange 
Law  (Wechselordnung,  1848-50),  while  the  general  Commercial 
Code  (Gemeines  Handelsgesetzbuch),  enacted  in  various  states 
between  1862  and  1866,  was  reenacted  for  the  new  empire  in 
1 87 1.2  Just  as  the  influence  of  commerce  set  in  motion  the 
forces  that  finally  brought  about  the  unity  of  law  in  Germany, 
so  the  influence  of  commerce  set  in  motion  the  forces  that 
finally  compelled  the  invention  of  the  existing  Constitution  of 
the  United  States.  The  first  step  was  taken  in  January,  1786, 
when  Virginia  issued  a  call  for  a  convention  of  states  to  meet  at 
Annapolis,  to  "take  into  consideration  the  trade  of  the  United  Annapolis 
States;  to  examine  the  relative  situations  and  trade  of  said 
states;  to  consider  how  far  a  uniform  system  in  their  commercial 
regulations  may  be  necessary  to  their  common  interest  and 
their  permanent  harmony."3  When  Maryland  prompted  Vir- 

1  Taine,  History  of  English  Litera-          f  Cf.   Bryce,  Studies  in  History 
ture,  i,  i.  and  Jurisprudence,  777,778. 

1  Madison  Papers,  ii,  69. 


26 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Address  pre- 
pared by 
Hamilton. 


Federal  Con- 
vention first 
proposed  by 
Webster  in 
1781. 


ginia  to  take  that  step,  by  proposing  that  commissioners  from 
all  the  states  should  meet  and  regulate  the  restrictions  on  com- 
merce for  the  whole,  the  advantages  of  "a  politico-commercial 
commission"  for  the  continent  were  foreseen.  It  was  New 
Jersey  that  gave  a  wider  purpose  to  this  trade  convention  by 
authorizing  her  commissioners  "to  consider  how  far  a  uniform 
system  in  their  commercial  regulations,  and  other  important 
matters,  might  be  necessary  to  the  common  interest  and  per- 
manent harmony  of  the  several  states ;  and  to  report  such  an 
act  on  the  subject  as,  when  ratified  by  them,  would  enable  the 
United  States  in  Congress  assembled  effectually  to  provide  for 
the  exigencies  of  the  Union."  1  Therefore  in  the  address  of  the 
Annapolis  Convention,  drafted  by  Hamilton,  it  was  said: 
"Your  commissioners  submit  an  opinion,  that  the  idea  of  ex- 
tending the  powers  of  their  deputies  to  other  objects  than  those 
of  commerce,  which  has  been  adopted  by  the  State  of  New 
Jersey,  was  an  improvement  on  the  original  plan,  and  will 
deserve  to  be  incorporated  with  that  of  a  future  convention. 
They  are  the  most  naturally  led  to  this  conclusion,  as,  in  the 
course  of  their  reflections  on  the  subject,  they  have  been  induced 
to  think  that  the  power  of  regulating  trade  is  of  such  compre- 
hensive extent,  and  will  enter  so  far  into  the  general  system  of 
the  federal  government,  that  to  give  it  efficacy  and  to  obviate 
questions  and  doubts  concerning  its  precise  nature  and  limits, 
may  require  a  corresponding  adjustment  of  other  parts  of  the 
federal  system."  2  As  all  the  world  knows,  the  one  outcome  of 
the  Annapolis  Convention  was  the  call  for  a  convention3  "to 
meet  at  Philadelphia  on  the  second  Monday  of  the  next  May 
(1787),  to  consider  the  situation  of  the  United  States,  and 
devise  such  further  provisions  as  should  appear  necessary  to 
render  the  Constitution  of  the  Federal  Government  adequate 
to  the  exigencies  of  the  Union;  and  to  report  to  Congress 
such  an  act  as,  when  agreed  to  by  them  and  confirmed  by 
the  legislatures  of  every  state,  would  effectually  provide 
for  the  same."  3 

Madison  has  thus  recorded  the  fact  that  six  years  before  that 
time,  Pelatiah  Webster  had  proposed  the  calling  of  such  a  con- 
vention: "  In  a  pamphlet  published  in  May,  1781,  at  the  seat  of 


1  Elliot,i,  117,  118. 

*  Madison  Papers,  ii,  700,  701. 


1  Elliot,  i,  117-120. 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  27 

Congress,  Pelatiah  Webster,  an  able  though  not  conspicuous  cit- 
izen, after  discussing  the  fiscal  system  of  the  United  States,  and 
suggesting,  among  other  remedial  provisions,  one  including  a 
national  bank,"  was  the  first  to  indicate  "the  necessity  of  their 
calling  a  Continental  Convention  for  the  express  purpose  of  ascer- 
taining, defining,  enlarging,  and  limiting,  the  duties  and  powers 
of  their  Constitution."  l  In  the  notes  to  his  great  paper  of  Feb- 
ruary 16,  1783,  Webster  tells  us  in  express  terms  that  from  the 
outset  he  uwas  fully  of  opinion  (though  the  sentiment  at  that 
time  would  not  very  well  bear)  that  it  would  be  ten  times  easier 
to  form  a  new  Constitution  than  to  mend  the  old  one." 

This  daring  innovator,  who  was  the  first  to  understand 
the  necessity  of  an  entirely  new  federal  fabric,  was  born  at 
Lebanon,  Connecticut,  in  1726,  and  graduated  at  Yale  College 
in  1746.  In  1755  he  moved  to  Philadelphia,  where  he  became 
a  prosperous  merchant,  meeting  with  such  success  as  to  earn 
ample  leisure  for  study  and  writing.  During  the  British  oc- 
cupation of  the  city  in  February,  1778,  on  account  of  his 
ardor  in  the  patriot  cause,  he  was  arrested  at  night,  probably 
by  order  of  General  Howe,  and  closely  confined  in  the  city 
prison  for  over  four  months,  a  large  part  of  his  property 
being  confiscated  to  the  King's  stores.  As  early  as  October, 
1776,  he  had  begun  to  write  on  the  currency,  strenuously 
urging  upon  Congress  the  levying  of  a  tax  to  provide  means 
to  raise  the  debt  incurred  by  the  heavy  issuance  of  the 
bills  of  credit  commonly  known  as  "  Continental  Currency." 
Three  years  later  he  began  the  publication  of  the  famous  series 
of  "Essays  on  Free  Trade  and  Finance,"  of  which  seven  num-  His  essays  on 
bers  were  issued  in  1785.  In  the  next  year  appeared  "An  Essay 
on  Credit.  Reasons  for  Repealing  the  Act  of  the  Legislature, 

1  Madison   Papers,  ii,    706,  707.  croft's  inference  is  based  on  flimsy 

No  attention  should  be  paid  to  Ban-  hearsay  nearly  a  century  after  the 

croft's   vain   attempt    to   discredit  event.    Bancroft  never  grasped  the 

Madison's    statement.     History   of  importance  of  Webster's  work.   AI- 

the  Constitution,  i,  24,  note  3.  Apart  exander  Johnston,  in  his  American 

from  Madison's  great  accuracy  and  Political  History,  70,  says:  "  In  May, 

Bancroft's   well-known    inaccuracy  1781,  the   first   public  proposal  of 

stands    the    fact    that  the  call  of  this  means  of  revisal  ["by  a  con- 

1781  was   a   natural  part  of  Pela-  vention  of  all  the  states "]  was  made 

tiah   Webster's    initiative    as  now  by    Pelatiah   Webster   in  a    pam- 

understood.    Madison  was  on  the  phlet." 
ground  and  knew  the  facts;  Ban- 


28 


THE  AMERICAN  CONSTITUTION 


[CH. 


His  contact 
with  Congress. 


His  fitness  to 
deal  with  the 
problem  of 
problems. 


Revoking  the  Charter  of  the  Bank  of  North  America."  Finally, 
in  1791,  he  republished  his  various  papers  in  a  work  entitled 
"Political  Essays  on  the  Nature  and  Operation  of  Money, 
Public  Finances,  and  other  Subjects  Published  during  the 
American  War,  and  Continued  up  to  the  Present  Year."  l  That 
volume,  which  displays  a  marvelous  mastery  of  the  subject  to 
which  it  is  devoted,  continues  as  the  leading  authority  upon 
the  finances  of  that  period.  In  weighing  Madison's  statement 
that  Pelatiah  Webster,  though  an  able  was  not  a  "conspicu- 
ous" citizen,  we  must  take  into  account  not  only  the  extent 
and  importance  of  his  intellectual  work,  but  also  the  fact  that, 
as  a  political  economist,  he  was  consulted  by  Congress  as  to  the 
resources  of  the  country.  Another  evidence  of  his  position  as 
a  public  man  is  to  be  found  in  the  fact  that  when  in  July,  1782, 
a  petition  was  to  be  presented  to  Congress  in  behalf  of  "the 
deranged  officers  of  the  lines  of  Massachusetts  and  Connecti- 
cut," he,  a  native  of  the  state  last  named,  was  appealed  to  for 
his  influence.  In  a  petition  drawn  in  the  noblest  style,  and 
signed  "Pelatiah  Webster,  William  Judd,"  he  presented  the 
case,  which  was  finally  referred  to  a  special  committee  com- 
posed of  Mr.  Peters,  Mr.  Hamilton,  and  Mr.  Dyer.  The  report,2 
which  survives  in  the  handwriting  of  Alexander  Hamilton,  is 
dated  March  6,  1783,  just  eighteen  days  after  the  publication 
of  the  great  paper  of  February  16  of  that  year.  Thus  the  fact 
is  fixed  that  as  a  public  man  Webster  was  as  well  known  to 
Hamilton  as  he  was  to  Madison. 

This  successful  merchant,  ardent  patriot,  trained  financier, 
and  recognized  expounder  of  the  science  of  political  economy, 
was  better  equipped  perhaps  than  any  man  of  his  time  to  deal 
with  the  problem  of  problems  which  then  so  sharply  con- 
fronted the  country.  As  he  viewed  it,  that  problem  was  in  its 
essence  financial  and  commercial.  Approaching  it  on  its  finan- 
cial side,  he  set  for  himself  the  task  of  constructing  an  entirely 

1  The  second  edition  of  1791  was      officers  of  the  lines  of  Massachusetts 


"Printed  and  sold  by  Joseph 
Crukshank,  No.  91  High  Street," 
Philadelphia. 

2  It  begins:  "The  Committee  to 
whom  was  committed  the  report  of 
the  Grand  Committee  on  the  me- 
morial of  Pelatiah  Webster  and  Wil- 
liam Judd  in  behalf  of  the  deranged 


and  Connecticut  submit  the  follow- 
ing resolution,"  which  was  one  of 
approval.  MS.  Records  of  the  Con- 
tinental Congress,  no.  19,  vol.  6, 
folios  489-493.  It  is  sad  indeed  that 
Congress  has  not  yet  provided  for 
the  printing  of  these  records. 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  29 

new  federal  fabric  to  be  endowed,  for  the  first  time  in  the  world's 

history,  with  the  independent  power  of  taxation.   To  use  his 

own  words:  "I  begin  with  my  first  and  great  principle,  viz.:  inventor 

That  the  Constitution  must  vest  powers  in  every  department  of  fed.eral 

sufficient  to  secure  and  make  effectual  the  ends  of  it.  ...  They 

must  therefore  of  necessity  be  vested  with  the  power  of  taxation. 

I  know  this  is  a  most  important  and  weighty  truth,  a  dreadful 

engine  of  oppression,  tyranny,  and  injury  when  ill  used;  yet, 

from  the  necessity  of  the  case,  it  must  be  admitted.  ...  To 

make  all  these  payments  dependent  on  the  votes  of  thirteen 

popular  assemblies  ...  is  absurd.    This  tax  can  be  laid  by 

the  supreme  authority  much  more  conveniently  than  by  the 

particular  assemblies,  and  would  in  no  case  be  subject  to  their 

repeal  or  modifications."    In  that  fundamental  concept  was 

embodied  the  path-breaking  idea  (bahnbrechende  Idee)  that 

wrought  the  revolution.  From  the  conception  of  a  federal  gov- 

ernment with  independent  taxing  power  resulted,  as  an  in-  Supremacy 

evitable  corollary,  the  idea  of  a  strictly  organized  government, 

armed  with  the  power  to  execute  its  own  mandates.    With  a 

lucidity  and  terseness  never  exceeded  by  Marshall  in  restating 

his  formulas,  Webster  said:  "No  laws  of  any  state  whatever, 

which  do  not  carry  in  them  a  force  which  extends  to  their 

effectual  and  final  execution,  can  afford  a  certain  or  sufficient 

security  to  the  subject  :  this  is  too  plain  to  need  any  proof.  Laws 

or  ordinances  of  any  kind  (especially  of  august  bodies  of  high 

dignity  and   consequence)  which  fail  of  execution  are  much 

worse  than  none;  they  weaken  the  government;  expose  it  to 

contempt;  destroy  the  confidence  of  all  men,  natives  and  for- 

eigners, in  it."    In  ordejlto  endow  his  unique  federal  creation 

with  the  power  thus  to  execute  its  own  laws,  he  proposes  tlffi 

it  should  be  divided,  as  the  state  governments  are,  into  three 

departments,  executive,  legislative,  and  judicial,  the  organiza- 

tion oTeach  of  which  he  worked  out  in  great  detail.  ^Thusfgr 

the  first  time  in  history,  the  great  architect  orpposed  (i)  a  f  efjj  His  four  novel 

eral   government  with   the  independent  power  of  taxation: 

(2)  the  division  of  the  federal  head  into  three  departments, 

legislative,  executive,  and  judicial;  (3)  the  division  of  the  fed- 

eral legislature  into  two  cr^rp^rv.""^  a  federal  government 


with  delegated  powers,  the  residuum  of  power  remaining  in 
states.  The  fourth  proposition  Webster  stated  in  this  remark- 


THE  AMERICAN  CONSTITUTION 


[Ca. 


His  effort  to 
regulate  trade 
between  the 
states. 


ably  ample  and  explicit  form  as  an  anticipation  of  the  Tenth 
Amendment,  which  provides  that  "the  powers  not  delegated 
to  the  United  States  by  the  Constitution,  nor  prohibited  by  it 
to  the  states,  are  reserved  to  the  states  respectively  or  to  the 
people."  " I  propose  further,"  said  Webster,  "that  the  powers 
of  Congress,  and  all  the  other  departments,  acting  under  them, 
shall  all  be  restricted  to  such  matters  only  of  general  necessity 
and  utility  to  all  the  states,  as  cannot  come  within  the  juris- 
diction of  any  particular  state,  or  to  which  the  authority  of  any 
particular  state  is  not  competent :  so  that  each  particular  state 
shall  enjoy  all  the  sovereignty  and  supreme  authority  to  all  in- 
tents and  purposes,  excepting  only  those  high  authorities  and 
powers  by  them  delegated  to  Congress,  for  the  purposes  of  the 
general  Union."  The  discovery  of  these  four  basic  principles, 
of  which  the  world  had  never  heard  before,  wrought  a  revolu- 
tion whose  essence  is  embodied  in  the  fact  that  the  new  crea- 
tion, partly  federal  and  partly  national,  operates  directly  on 
the  citizen  and  not  on  the  states  as  corporations.  As  Tocque- 
ville  has  expressed  it:  "Here  the  term  federal  government  is 
clearly  no  longer  applicable  to  a  state  of  things  which  must 
be  styled  an  incomplete  national  government  (un  gouvernement 
national  incomplet) :  a  form  of  government  has  been  found  out 
which  is  neither  exactly  national  nor  federal;  but  no  further 
progress  has  been  made,  and  the  new  word  which  will  one  day 
designate  this  novel  invention  does  not  exist."  * 

Approaching  his  fundamental  concept  from  the  commercial 
side,  Webster  manifested  an  almost  supernormal  prescience 
as  to  future  conditions,  so  far  as  they  involved  the  need  for 
uniformity  of  law  in  general  and -uniformity  of  congressional 
legislation  affecting  trade  between  the  states  in  particular. 
"Merchants,"  he  said,  "must  from  the  nature  of  their  busi- 
ness certainly  understand  the  interests  and  resources  of  the 
country  the  best  of  any  men  in  it.  ...  I  therefore  humbly 
propose,  if  the  merchants  in  the  several  states  are  disposed  to 
send  delegates  from  their  body,  to  meet  and  attend  the  sitting 
of  Congress,  that  they  shall  be  permitted  to  form  a  chamber  of 
commerce,  and  their  advice  to  Congress  be  demanded  and 


1  Tocqueville  was  keenly  con- 
scious of  the  fact  that  a  great  dis- 
covery (une  grande  decouverte)  had 


been  made,  but  the  documentary 
evidence  as  to  its  real  author  was 
never  accessible  to  him. 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  31 

admitted  concerning  all  bills  before  Congress,  as  far  as  the  same 
may  affect  the  trade  of  the  states.  Besides  the  benefits  which 
Congress  may  receive  from  the  institution,  a  chamber  of  com- 
merce, composed  of  members  from  all  trading  towns  in  the 
states,  if  properly  instituted  and  conducted,  will  prove  very 
many,  I  might  almost  say  innumerable  advantages  of  singular 
utility  to  all  the  states.  It  will  give  dignity,  uniformity,  and 
safety  to  our  trade."  That  recommendation  was  the  only  basic 
part  of  the  plan  of  February  16,  1783,  which  the  Convention 
of  1787  failed  to  adopt.  But  a  century  later  the  wisdom  and 
foresight  of  its  author  were  fully  vindicated  in  that  respect  by 
the  creation  of  the  Department  of  Commerce  and  Labor,  which  Foreshadows 
is  now  performing,  in  a  general  way,  the  functions  which  were  Department 
to  have  been  performed  by  the  chamber  of  commerce  in  the  and  Labor, 
original  plan.1  Thus  it  appears  that  the  first  modern  effort  to 
give  unity  to  law  in  Germany  was  made  by  the  merchant  class 
as  a  prelude  to  the  movement  for  national  unity;  thus  it 
appears  that  the  Annapolis  Convention,  called  to  establish  a 
uniform  commercial  system,  widened  into  the  Federal  Conven- 
tion of  1787;  thus  it  appears  that  the  "wholly  novel  theory" 
of  federal  government  which  was  embodied  in  the  work  of  that 
immortal  assembly  was  the  invention  of  a  Philadelphia  mer- 
chant and  political  economist,  whose  plan  rested  on  two  fun- 
damental concepts  —  a  uniform  and  self-executing  system  of 
federal  taxation,  and  a  uniform  commercial  system,  that  would 
give  "dignity,  uniformity,  and  safety  to  our  trade."  Just  as  it 
has  been  said  by  a  world-famous  jurist  that  the  merchant  was 
"the  father  of  the  civil  code  of  Germany,"  2  so  it  may  be  said 
that  a  merchant  was  the  father  of  the  existing  Constitution  of 
the  United  States.  The  exigencies  of  the  times  demanded  the  Exigencies  of 
invention;  a  genius  with  special  aptitude  and  training  for  the  ^ndecHheT 
task  was  at  hand;  and  he  performed  it  with  a  perfect  under-  invention, 
standing  of  the  magnitude  of  his  achievement.  Who  can  doubt 
that  fact  after  feeling  the  glow  of  intellectual  ecstasy  with 
which  he  concludes  this  luminous  statement:  "But  now  the 

1  President  Roosevelt,  in  address-  2  See  Dr.  Rudolph  Sohm's  article 

ing  at  the  White  House  a  delegation  on  the  general  theory  and  purpose 

headed  by  Mr.  Straus.then  Secretary  of  the  code  in  The  Forum,  October, 

of  Commerce  and  Labor,  commented  1 899. 
with  great  emphasis  upon  this  fea- 
ture of  Pelatiah  Webster's  plan. 


THE  AMERICAN  CONSTITUTION 


[CH. 


History  of  the 
records  of  the 
Federal  Con- 
vention. 


Seal  of  secrecy 
partially 
broken  in 
1818. 


great  and  most  difficult  part  of  this  weighty  subject  remains  to 
be  considered,  viz. :  how  these  supreme  powers  are  to  be  con- 
stituted in  such  manner  that  they  may  be  able  to  exercise  with 
full  force  and  effect  the  vast  authorities  committed  to  them  for 
the  good  and  well-being  of  the  United  States,  and  yet  so 
checked  and  restrained  from  exercising  them  to  the  injury  and 
ruin  of  the  states,  that  we  may  with  safety  trust  them  with 
a  commission  of  such  vast  magnitude  —  and  may  Almighty 
Wisdom  direct  my  pen  in  this  arduous  discussion."  In  such 
brilliant  and  comprehensive  statements  we  have  photographed 
for  us  the  workings  of  a  mind  moving  along  paths  never  trod 
before. 

Naturally  there  are  those  who  desire  to  know  why  it  was, 
with  such  authentic  and  explicit  documentary  evidence  avail- 
able, the  world  was  not  informed  as  to  the  real  history  of  the 
authorship  of  the  great  invention  from  the  very  beginning.  In 
the  first  place,  it  must  be  remembered  that  whenever  a  great 
intellectual  performance  takes  place  a  certain  time  must  elapse 
before  its  length,  breadth,  and  depth  can  be  correctly  esti- 
mated. A  long  time  passed  by  before  even  Shakespeare  was 
permitted  to  enter  into  the  full  possession  of  his  kingdom.  In 
the  second  place,  it  must  be  remembered  that  the  proceedings 
of  the  Federal  Convention  were  shrouded  in  the  profoundest 
secrecy,  whose  seal  was  not  broken,  even  in  part,  until  after  the 
lapse  of  thirty-one  years.  Another  period  of  twenty- three  years 
had  then  to  pass  by  before  the  most  elaborate  and  decisive  of 
all  the  memorials  was  finally  given  to  the  world.  In  order  to 
keep  its  secrets  the  Convention,  before  final  adjournment,  di- 
rected its  secretary  to  deposit  "the  Journal  and  other  papers 
of  the  Convention  in  the  hands  of  the  President";  and  in  an- 
swer to  an  inquiry  from  him  it  was  resolved  that  Washington 
"  retain  the  Journal  and  other  papers  subject  to  the  order  of 
Congress,  if  ever  formed  under  the  Constitution."  1  Not  until 
1818  was  the  seal  of  secrecy  upon  the  official  record  broken  when 
Congress  by  a  joint  resolution  directed  the  publication  of  the 
"Journal  .  .  .  and  all  acts  and  proceedings  "  of  the  Convention 
then  in  possession  of  the  Government.  Whatever  was  revealed 


1  Documentary  History  of  the  Con- 
stitution, iii,  769-770.  "Mr.  King 
suggested  that  the  Journals  be 


either  destroyed  or  deposited  in  the 
custody  of  the  President,"  p.  769. 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  33 

between  1787  and  1818,  generally  under  political  pressure,  was 
of  a  clandestine  character.  In  that  way  Hamilton's  sketch  of 
a  plan  of  government,  unjustly  represented  as  monarchical, 
submitted  by  him  June  18,  1787,  was  printed  as  early  as  1801, 
"with  a  view  of  destroying  his  popularity  and  influence."  l 
John  Quincy  Adams,  then  Secretary  of  State,  directed  the  print- 
ing at  Boston  in  1819  of  the  "Journal,  Acts  and  Proceedings 
of  the  Convention  .  .  .  which  formed  the  Constitution  of  the 
United  States."  2  Among  the  many  difficulties  he  encountered 
perhaps  the  gravest  was  that  arising  from  the  fact  that  Charles 
Pinckney's  plan,  offered  on  May  29,  1787,  just  after  the  Vir-  Pinckney's 
ginia  plan,  did  not  appear  in  the  record.  Thus  it  became  nee-  p^an  not  *n 
essary  for  Adams  to  call  upon  Pinckney  for  a  copy  of  the  lost 
plan  thirty-two  years  after  its  presentation  to  the  Convention. 
In  complying  with  that  request,  Pinckney  stated  to  the  Sec- 
retary of  State  that  "it  is  impossible  for  me  now  to  say  which 
of  the  4  or  5  draughts  I  have  is  the  one.  But  enclosed  I  send 
you  the  one  I  believe  was  it."  3  The  copy  so  furnished  has  for 
a  long  time  been  regarded  as  spurious,  to  a  certain  extent  at 
least,  largely  because  of  a  guarded  yet  hostile  criticism  made 
upon  it  after  Pinckney's  death,  by  Madison,  who  begins  by 
saying  that  "the  length  of  the  document  laid  before  the  Conven- 
tion, and  other  circumstances,  having  prevented  the  taking 
of  a  copy  at  the  time,"  4  etc.  Thus  we  have  the  fact  fixed  by 
the  highest  authority  that  the  plan  presented  by  Pinckney, 
reducing  "his  ideas  of  a  new  government  to  a  system,"  was  so 
elaborate  that  its  "length"  was  one  of  the  causes  that  pre- 
vented the  making  of  a  copy  of  it.  There  can  be  no  doubt  that 
Pinckney's  "system"  was  as  elaborately  worked  out  as  Ham- 
ilton's "full  plan,  so  prepared  that  it  might  have  gone  into 
immediate  effect  if  it  had  been  adopted."  Only  Pinckney  and 
Hamilton  formulated,  before  the  Convention  met,  finished 
schemes  of  a  new  system  of  federal  government ;  the  Virginia 
Resolutions  did  not  embody  what  may  be  called  a  plan ;  they 
only  set  forth  the  basic  principles  upon  which  a  new  federal 
system  might  be  constructed ;  they  only  "brought  before  the 

1  See  Jameson,  Studies,  p.  148.  Convention"  in  the  Am.  HisL  Re- 

1  The  Journal  was  reprinted  in  view,  xiii,  no.  I,  Oct.,  1907. 

1830  as  volume  iv  of  the  first  edition  8  J.  Q.  Adams,  Memoirs,  iv,  365. 

of  Elliot's  Debates.    See  Max  Far-  4  Madison  Papers,  iii,  Appendix 

rand's  "The  Records  of  the  Federal  no.  2,  v.   See  also  p.  735. 


34 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Pinckney 
defended 
by  Jameson 
and  Nott. 


His  plan 
submitted 
to  Committee 
of  Detail. 


Convention  questions  for  abstract  discussion  and  bases  on 
which  to  rest  principles  of  government."  1  Pinckney  himself 
stated  the  matter  with  perfect  accuracy  when  in  writing  to 
John  Quincy  Adams,  December  12,  1818,  he  said:  "The 
draught  of  the  Constitution  proposed  by  me  was  divided 
into  a  number  of  articles  and  was  in  complete  detail  —  the 
resolutions  offered  by  Mr.  Randolph  were  merely  general  ones, 
and  as  far  as  I  recollect  they  were  both  referred  to  the 
same  committee." 2  And  here  let  the  fact  be  emphasized 
that,  in  the  words  of  a  recent  investigator,  "there  exist  four 
different  texts  of  these  resolutions,  and  what  is  more  remark- 
able, it  can  (in  the  view  of  the  present  writer)  be  proved  that  no 
one  of  the  four  is  the  exact  text  of  the  original  series  which 
Governor  Randolph  laid  before  the  Convention  on  May  29, 
1787."  3  Thus  it  appears  that  the  exact  text  of  the  Virginia 
Resolutions  as  well  as  that  of  the  Pinckney  plan  is  a  matter  of 
controversy.  Fortunately  for  the  fame  of  Pinckney,  two  dis- 
tinguished specialists,  citizens  of  New  England,  have  recently 
undertaken  to  defend  his  memory ;  and  the  outcome  has  been 
a  very  important  contribution  to  the  history  of  what  occurred 
within  the  Committee  of  Detail.  That  outcome  is  so  important 
that  its  essence  will  be  restated  within  a  narrow  compass,  as 
it  has  been  of  great  value  to  the  author  in  dealing  with  the 
authorship  of  the  Constitution  as  a  whole.  The  Virginia  Re- 
solutions and  the  Pinckney  plan,  offered  together  on  May  29, 
were  at  once  referred  to  a  Committee  of  the  Whole;  and, 
after  a  discussion  that  continued  until  June  13,  it  reported 
to  the  House  the  resolutions  as  it  had  amended  and  agreed 
upon  them.  Finally  on  July  26,  the  twenty-three  resolutions, 
as  the  Convention  had  formulated  them,  were  referred  to 
the  Committee  of  Detail,  and  "with  the  above  resolutions 
were  referred  the  propositions  offered  by  Mr.  C.  Pinckney  on 
the  twenty-ninth  of  May,  and  by  Mr.  Paterson  on  the  fif- 
teenth of  June."4  The  Committee  of  Detail  consisted  of  Rut- 
ledge,  Randolph,  Gorham,  Ellsworth,  and  James  Wilson.5  As 


1  The   Mystery   of  the   Pinckney 
Draught,  264. 

2  Writings  of  James  Madison,  iii, 
22. 

8  Jameson,  "Studies  in  the  His- 
tory of  the  Federal  Convention  of 


1787,"  pp.  103-104,  Annual  Report 
of  Am.  Hist.  Association. 

4  Madison  Papers,  ii,  1225- 
1226. 

6  The  duty  of  that  committee 
was  "to  prepare  and  report  a  con- 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  35 

the  last  named  was  the  dominating  mind  of  the  committee,  it 
is  not  strange  that  he  should  have  recorded  what  occurred  as 
to  the  use  made  of  the  Pinckney  plan  or  "system,"  which  was 
certainly  more  concrete  and  more  elaborate  than  anything 
else  with  which  the  committee  was  called  upon  to  deal.  A  few 
years  ago  the  mystery  was  solved  by  the  finding,  among  the 
Wilson  manuscripts  in  the  library  of  the  Historical  Society  of  New  testi~ 

T-»  i          •          r  f  e     1  T»«      t  mony  from 

Pennsylvania,  of  an  outline  of  the  genuine  Pinckney  plan,  Wilson  manu- 
by  Professor  Jameson,1  who  says:  "There  came  to  the  writer  scripts. 
a  manuscript  containing  large  portions  of  the  original  text  of 
the  long  lost  Pinckney  plan. 

"Then  felt  I  like  some  watcher  of  the  skies 
When  a  new  planet  swings  into  his  ken." 

From  a  critical  examination  subsequently  made,  it  appears 
that  "the  portion  of  the  plan  which  Professor  Jameson  discov- 
ered contains  not  less  than  twenty  propositions  that  are  found 
in  the  report  of  the  Committee  of  Detail  and  that  are  not  in  the 
twenty-three  resolutions  submitted  to  the  committee,  nor  in 
the  Virginia  or  Paterson  resolutions.  .  .  .  By  the  help  of  the 
condensation  of  the  plan  which  Professor  Jameson  discovered, 
and  from  the  light  thrown  on  the  problem  by  the  document 
printed  below,  we  can  say  that  Pinckney  suggested  some 
thirty-one  or  thirty-two  provisions  which  were  finally  em- 
bodied in  the  Constitution;  ...  it  must  not  be  assumed  that  we 
know  all  that  Pinckney  thus  contributed  to  the  fabric  of  the 
Constitution ;  ...  if  mere  assertion  based  on  analogy  and  gen- 
eral probability  were  worth  while,  other  portions  of  the  Consti- 
tution might  be  pointed  to  as  coming  from  the  ingenious  and 
confident  young  statesman  from  South  Carolina."  2  Thus, 
through  the  unearthing  of  a  priceless  document  ("no  docu- 
ments, no  history"),  Bancroft's  foundationless  assertion  that 
"no  part  of  it  [the  Pinckney  plan]  was  used  " 3  by  the  Conven- 
tion has  been  destroyed ;  and  in  the  same  way  Meigs's  asser- 
tion, that  "the  Virginia  plan  became  the  bed-rock  of  the  Con- 
stitution," has  been  entirely  undermined.4  The  fact  is,  strictly 

stitution,"    and     the    Convention          *  American     Historical     Review, 

adjourned  until  August  6,  so  that  ix,  July,  739-741. 
the  Committee   might    have  time          '  History  of  the  Constitution,   ii, 

to   prepare    and    report  the  Con-  14. 

stitution.  4  The  Growth  of  the  Constitution, 

1  Studies,  128.  17. 


THE  AMERICAN  CONSTITUTION 


[CH. 


Pinckney  pre- 
sented only 
real  plan. 


Its  influence 
on  the  Consti- 
tution. 


Unofficial 
records. 


speaking,  there  was  no  Virginia  plan;  the  Virginia  Resolutions 
presented  only  "questions  for  abstract  discussion  and  bases  on 
which  to  rest  principles  of  government."  The  only  plan  or 
11  system"  actually  presented  to  the  Convention  was  that  of 
Charles  Pinckney,  which,  as  the  documentary  evidence  now 
available  shows,  was  very  largely  used  by  the  Committee  of 
Detail  in  preparing  their  draft  of  the  Constitution  submitted 
to  the  Convention  on  August  6.  In  accounting  for  the  loss  of 
the  original  text  of  the  Pinckney  plan,  it  is  hard  to  resist  Judge 
Nott  when  he  says:  "Judging  in  the  light  of  the  facts  which  the 
case  discloses,  we  must  conclude  that  the  only  thing  which 
would  have  justified  the  Committee  of  Detail  in  not  returning 
the  Pinckney  draught  to  the  secretary  of  the  Convention  was 
that  it  had  been  destroyed ;  the  only  thing  which  would  have 
justified  the  committee  in  destroying  it  was  that  they  were 
compelled  to  use  it  as  printer's  copy."  l  How  otherwise  could 
it  have  escaped  the  vigilant  Madison,  who  preserved  a  copy  of 
everything  else?  No  matter  if  the  exact  text  of  the  Virginia 
Resolutions  and  the  Pinckney  plan  have  been  lost;  it  is  certain 
that  we  possess  the  substance  of  both;  and  it  is  equally  certain 
that  from  the  latter  a  large  part  of  the  details  of  the  Constitu- 
tion were  drawn.  "If  we  discard  the  draught  —  the  original 
draught,  the  disputed  draught,  and  the  draught  described  in 
the  *  Observations/  the  fact  will  remain  that  Pinckney  was 
an  important  contributor  to  the  work  of  framing  the  Constitu- 
tion." 2 

As  public  men  of  that  day  were  accustomed  to  do  their  own 
reporting,  it  is  not  strange  that  many  members  of  the  secret 
conclave  —  notably  Madison,  Luther  Martin,  Yates,  Pierce, 
Pinckney,  Paterson,  Hamilton,  McHenry,  and  Mason — 
made  notes  of  the  proceedings  for  their  own  use  and  protec- 
tion. Certainly  theirs  was  a  fortunate  precaution,  as  the  official 
secretary,  either  through  incompetency  or  neglect,  kept  what, 
according  to  Adams,  "were  no  better  than  the  daily  minutes 
from  which  the  regular  journal  ought  to  have  been,  but  never 
was  made  out."  3  That  vacuum  was  never  filled  until  "The 


1  The   Mystery  of  the  Pinckney 
Draught,  241. 
8  Ibid.  261. 
*  J.  Q.  Adams,  Memoirs,  iv,  385. 


For  letters  concerning  his  appoint- 
ment, see  Doc.  Hist,  of  the  Constitu- 
tion, iv,  121-122, 169;  and  also  Row- 
land, Life  of  George  Mason,  ii,  102. 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  37 

Papers  of  James  Madison,"  who  died  in  1836,  were  purchased  The  Madison 
by  Congress  and  published  in  three  volumes  under  the  editor-  Papers>  l841- 
ship  of  Gilpin  in  1841.  All  other  records  at  once  paled  into 
insignificance  in  the  presence  of  this  invaluable  storehouse, 
more  than  one  half  of  which  is  made  up  of  notes  of  the  debates 
of  the  Convention.  In  his  preface  to  the  "  Debates,"  Madison 
says:  "I  chose  a  seat  in  front  of  the  presiding  member,  with 
the  other  members  on  my  right  and  left  hand.  In  this  favor- 
able position  for  hearing  all  that  passed,  I  noted  in  terms  leg- 
ible and  in  abbreviations  and  marks  intelligible  to  myself  what 
was  read  from  the  chair  or  spoken  by  the  members;  and  losing 
not  a  moment  unnecessarily  between  the  adjournment  and 
reassembling  of  the  Convention,  I  was  enabled  to  write  out  my 
daily  notes  during  the  session  or  within  a  few  finishing  days 
after  its  close."  l  Thus  it  appears  that  the  record,  as  made  up 
by  the  semi-official  reporter,  to  whom  many  of  the  members 
supplied  copies  of  their  speeches  and  motions,  and  which  has  Entire  record 
become  the  standard  authority,  was  not  published  until  fifty- 
four  years  after  the  Convention  closed.  Just  at  that  moment,  years, 
when  a  critical  examination  of  the  entire  proceedings  was, 
for  the  first  time,  made  possible,  the  approaching  storm  of 
civil  war  suspended  such  inquiries  until  Bancroft  broke  the 
long  silence  by  publishing  in  1882,  when  he  was  quite  an  old 
man,  his  "History  of  the  Formation  of  the  Constitution  of  the 
United  States  of  America."  While  that  first  attempt  to  write 
the  history  of  the  Federal  Convention  has  undoubted  merit,  its 
many  glaring  inaccuracies  and  deficiencies  admonish  us  that  it 
was  the  mere  beginning,  not  the  end  of  an  inquiry.  As  an  illus- 
tration, reference  may  be  made  to  Bancroft's  cardinal  con- 
tention that  the  work  of  the  Convention  rested  on  five  plans: 
(i)  the  Virginia  plan;  (2)  the  Connecticut  plan;  (3)  the  Charles 
Pinckney  plan;  (4)  the  New  Jersey  plan;  (5)  the  Hamilton 
plan.  After  pluming  himself  in  his  preface  on  account  of  the 
supposed  discovery  of  a  paper  containing  the  so-called  Con-  Bancroft's  so- 
necticut  plan,  he  says  in  the  body  of  the  work:  "The  project 
which  in  importance  stands  next  to  that  of  Virginia  is  the 
series  of  propositions  of  Connecticut.  It  consisted  of  nine 
sections,  and  in  the  sessions  of  the  Convention  received  the 
support  of  the  Connecticut  delegation,  particularly  of  Sherman 
1  Madison  Papers,  ii,  716;  Doc.  Hist.,  iii,  7960. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Conditions  at 
the  time  of 
Webster's 
discovery. 


and  Ellsworth.  It  was  framed  while  they  were  still  contriving 
amendments  of  the  Articles  of  Confederation  .  .  .  therefore, 
certainly  before  the  I9th  of  June,  and  probably  soon  after  the 
arrival  of  Sherman  in  Philadelphia."  1  For  a  quarter  of  a  cen- 
tury that  utterly  foundationless  story  passed  as  authentic  his- 
tory, until  the  author,  in  searching  the  records  of  the  Conven- 
tion for  a  copy  of  the  so-called  Connecticut  plan,  discovered 
that  no  such  plan  was  ever  presented  at  the  time  alleged  or  at 
any  other  time.  The  whole  story,  so  far  as  the  Federal  Con- 
vention is  concerned,  is  a  pure  myth  that  existed  only  in  Ban- 
croft's imagination.  The  facts  are  that  the  series  of  proposi- 
tions in  question  were  drawn  years  before  by  Roger  Sherman 
while  he  was  a  member  of  the  Continental  Congress,  as  amend- 
ments then  to  be  proposed  to  the  Articles  of  Confederation. 
But  he  never  offered  them  either  in  the  Continental  Congress 
or  in  the  Federal  Convention;  they  were  simply  unused 
memoranda  found  among  Sherman's  papers  after  his  death  by 
his  executors.2 

From  what  has  now  been  said  it  appears  that  the  work  of  the 
Convention  really  rested  on  four  plans,  and  from  that  number 
must  be  deducted  the  New  Jersey  plan,  which,  as  it  simply 
proposed  a  revision  of  the  Articles  of  Confederation,  is  of  no 
importance  whatever  so  far  as  the  passing  into  the  Convention 
of  the  invention  of  February  16,  1783,  is  concerned.  In  simple 
yet  emphatic  terms  Pelatiah  Webster  has  thus  explained  the 
circumstances  under  which  that  invention  was  made.  He  says: 
"At  the  time  this  Dissertation  was  written  [Feb.  16,  1783]  the 
defects  and  insufficiency  of  the  old  Federal  Constitution  were 
universally  felt  and  acknowledged;  it  was  manifest,  not  only 
that  the  internal  policy,  justice,  security,  and  peace  of  the 
states  could  never  be  preserved  under  it,  but  the  finances  and 
public  credit  would  necessarily  become  so  embarrassed,  pre- 
carious, and  void  of  support,  that  no  public  movement,  which 
depended  on  the  revenue,  could  be  managed  with  any  effectual 
certainty:  but  though  the  public  mind  was  under  full  conviction  of 


1  Hist,  of  the  Constitution,  ii,  36- 
37,  and  note  I. 

2  See  "  Life  of  Roger  Sherman  "  by 
Jeremiah  Evarts,  in  Biography  of  the 
Signers,  ed.  of  1828,  pp.  42  seq.;  Life 
of  Sherman,  by  Boutelle,  132-134. 


The  author  has  dealt  with  the 
whole  subject  at  length  in  the  Yale 
Law  Review  for  December,  1908,  in 
an  article  entitled  "A  Bancroftian 
Invention." 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  39 

all  these  mischiefs,  and  was  contemplating  a  remedy,  yet  the  public 
ideas  were  not  at  all  concentrated,  much  less  arranged  into  any 
new  system  or  form  of  government  which  would  obviate  these  evils. 
Under  these  circumstances  I  offered  this  Dissertation  to  the 
public:  How  far  the  principles  were  adopted  or  rejected  in  the 
new  Constitution,  which  was  four  years  afterwards  [Sept.  17, 
1787]  formed  by  the  General  Convention,  and  since  ratified 
by  the  states,  is  obvious  to  every  one."  The  italicized  portion 
of  that  statement  is  supported  by  the  entire  body  of  contem- 
porary history.  At  that  early  day,  four  years  and  three  months 
before  the  meeting  of  the  Convention,  there  is  no  trace  or  No  trace  of 
I  suggestion  of  any  other  plan  or  project  of  a  new  Constitution 
;  that  can  be  placed  in  rivalry  or  contrast  with  Webster's  plan.  time. 
Thus  the  great  architect  stands  alone  and  isolated  from  all 
rivals  in  the  solitude  of  his  own  originality.1  Of  that  all- 
important  fact  we  have  incontestable  evidence  furnished  by 
Madison  himself.  In  his  "Introduction  to  the  Debates  in  the 
Convention"  he  says:  "As  a  sketch  on  paper,  the  earliest,  per- 
haps, of  a  constitutional  government  for  the  Union  (organized 
into  regular  departments,  with  physical  means  operating  on 
individuals),  to  be  sanctioned  by  the  people  of  the  states,  act- 
ing in  their  original  and  sovereign  character,  was  contained  in 
the  letters  of  James  Madison  to  Thomas  Jefferson,  of  the  nine- 
teenth of  March ;  to  Governor  Randolph  of  the  eighth  of  April; 
and  to  General  Washington  of  the  sixteenth  of  April,  1787,  for 
which  see  their  respective  dates."  2  That  statement  should 
close  the  controversy  as  to  authorship,  so  far  as  Madison  is 
concerned,  as  he  frankly  admits  that  he  never  made  a  "sketch  Madison's  first 
on  paper"  earlier  than  March  and  April,  1787.  More  than  "a^" March 
four  years  before  that  time,  Pelatiah  Webster,  then  in  his  fifty-  and  April,  .;~ 
ninth  year,  had  given  to  the  world  his  finished  sketch,  of  more  I?87* 
than  thirty  octavo  pages,  in  which  he  had  worked  out  in  detail 
"a  constitutional  government  for  the  Union  (organized  into 
regular  departments,  with  physical  means  operating  on  indi- 
viduals), to  be  sanctioned  by  the  people  of  the  states,  acting 

1  In  the  winter  of  1784-85  Noah  1783,  without  material   additions. 

Webster,    then    a    young    man    of  Daniel  Webster,  Noah  Webster,  and 

twenty-six,  republished  at  Hartford,  Pelatiah  Webster  were  all  of  the 

in  a  pamphlet,  entitled  Sketches  of  same  stock. 

American  Policy,  the  substance  of  2  Madison  Papers,  ii,  714.    See 

Pelatiah  Webster's  paper  of  Feb.  16,  also  622,  630. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Webster's 
paper  spread 
broadcast, 
Feb.  16,  1783. 


Hamilton 
and  Madison 
then  in  Phil- 
adelphia. 


Effects  of 
Webster's 
initiative. 


in  their  original  and  sovereign  character"  —  a  government 
with  the  independent  power  of  taxation,  with  a  bicameral 
federal  legislature,  and  with  a  federal  judiciary  supreme  within 
its  jurisdiction.  Before  the  world  had  ever  heard  of  anything 
but  a  one-chamber  federal  assembly  he  said,  "That  Congress 
shall  consist  of  two  chambers,  an  upper  and  a  lower  house,  or 
Senate  and  Commons,  with  the  concurrence  of  both  necessary 
to  every  act."  As  the  elaborate  and  formal  paper  announcing 
the  great  invention  was  published  and  spread  broadcast  at 
Philadelphia,  then  "the  seat  of  Congress,"  on  February  16, 
1783,*  certainly  all  the  world  must  have  been  familiar  with  its 
contents  when  the  Federal  Convention  met  in  that  city  on 
May  25,  1787.  During  the  interval  of  four  years  and  three 
months,  Madison,  Hamilton,  and  Pinckney  were  all  members 
of  the  Congress  of  the  Confederation.  Madison  took  his  seat 
in  that  body  at  Philadelphia,  March  20, 1780,  and  was  actually 
present  in  that  city,  as  his  letters  show,  on  February  16,  1783. 
That  he  was  personally  familiar  with  Pelatiah  Webster  and  his 
work  we  know  from  his  statement,  heretofore  quoted,  to  the 
effect  that  "in  a  pamphlet  published  in  May,  1781,  at  the  seat 
of  Congress,"  Webster  had  been  the  first  to  suggest  the  calling 
of  a  "Continental  Convention"  charged  with  the  duty  of  mak- 
ing a  new  Constitution.  Hamilton  found  Madison  at  Philadel- 
phia when  he  took  his  seat  in  Congress,  November  25,  1782; 
he  continued  to  be  a  member  of  that  body  until  October,  1783; 
and,  as  the  record  shows,  he  was  actually  present  in  that  city, 
February  16,  1783.  Charles  Pinckney  was  a  member  of  Con- 
gress from  1784  to  1787. 

Only  the  blind  or  infatuated  will  contend  that  these  vigilant 
and  ambitious  young  statesmen,  intent  upon  improving  con- 
ditions then  crying  out  for  a  remedy,  did  not  read  and  master 
the  contents  of  the  great  document,  the  first  to  propose  the 
construction  of  a  new  federal  system,  published  "at  the  seat 
of  government,"  under  their  very  eyes,  by  Pelatiah  Webster  on 
February  16,  1783.  Certainly  this  ripe  financier  and  trained 
political  economist  of  fifty-seven  was  far  better  equipped  to 

1  On  the  title-page  this  appears:  printed,  it  covered  47  pages,  I2mo, 

"Philadelphia.    Printed    and    sold  and   is  dated   "Philadelphia,   Feb- 

by  T.   Bradford,   in   Front  Street,  ruary  16,  1783."  An  original  copy 

three  Doors  below  the  Coffee  is  to  be  seen  in  the  Library  of  Con- 
House.  MDCCLXXXIII."  As  originally 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  41 

solve  a  problem,  in  its  essence  financial  and  commercial,  than 
either  Madison,  Pinckney,  or  Hamilton  could  have  been  at  that 
time.  The  relation  that  existed  between  the  mature  man  of 
contemplation  and  the  younger  men  of  action  was  just  what 
it  should  have  been.  He  formulated,  in  the  light  of  his  experi- 
ence, the  novel  principles  which  they  were  to  translate  into  a 
working  system  of  government.  The  effect  of  Webster's  initiat- 
ive on  Hamilton  was  almost  instantaneous.  On  April  i,  1783,  Hamilton's 
just  six  weeks  after  the  publication  of  the  great  document,  moti°nof 
Hamilton  expressed  in  Congress,  for  the  first  time,  his  desire 
"  to  see  a  general  convention  take  place,  and  that  he  would 
soon,  in  pursuance  of  instructions  from  his  constituents,  pro- 
pose to  Congress  a  plan  for  that  purpose;  the  object  would  be 
to  strengthen  the  Federal  Constitution."  1  On  April  i82  Con-  Congressional 
gress  was  likewise  impelled  to  move  in  the  direction  of  a 
stronger  government  by  appealing  to  the  states  for  power  to 
levy  specific  duties  on  certain  enumerated  articles,  and  five 
per  cent  on  others.  On  April  28,  and,  as  Bancroft  admits,  "so 
far  as  the  records  show  never  till  then,"  3  Congress  appointed 
a  committee  on  pending  resolutions  in  favor  of  a  general  con- 
vention. A  few  months  later,  Robert  Morris,  the  financier 
of  the  Revolution,  resigned,  "rather  than  be  the  minister  of  Motive  of 
injustice,"  hoping  thus  to  force  upon  the  states  the  necessity  M°ms's. 

'    resignation. 

of  granting  taxing  power  to  Congress.4  The  great  innovator 
was  thus  able,  by  his  pen,  to  drive  the  men  at  the  wheel  to  take 
official  action  designed  to  bring  about  the  calling  of  the  "Con- 
tinental Convention"  he  had  been  the  first  to  propose  as  early 
as  1781;  and  at  the  same  time  to  warn  the  states  that  they 
must  arm  Congress  with  taxing  power,  which  was  his  basic 
contention. 

No  critical  mind  should  be  tempted  to  confuse  the  sphere  Difference 
that  belongs  to  the  architect,  who  made  the  great  advance  in 
modern  political  science  by  inventing,  in  1783,  an  entirely  master 
new  plan  of  federal  government,  with  the  sphere  that  belongs  builders- 

1  Madison  Papers,  i,  429,  430;  dressed  a  last  circular  to  the  gov- 

Elliot,  81.  ernor  of  every  state  urging  the 

8  Public  Journals  of  Congress,  necessity  of  granting  to  Congress 

1 7th  and  l8th  of  April,  1783,  iv,  some  power  to  provide  a  national 

262,  265.  revenue.  The  date  of  the  circular 

3  Hist,  of  the  Const.,  i,  105.  varies  with  the  time  of  its  emission. 

4  In  June,  1783,  Washington  ad-  Sparks',  viii,  439. 


42  THE  AMERICAN  CONSTITUTION  [Cn. 

to  the  practical  statesmen  who,  in  1787,  seized  upon  that  plan 
and  transformed  it  into  a  working  system.  To  each  achieve- 
ment, entirely  distinct  from  the  other,  belongs  the  reward  of 
immortality.  As  the  history  of  each  is  documentary  there  is  no 
excuse  for  confusing  the  one  with  the  other.  In  its  last  analysis 
the  problem  involves  simply  a  comparison  of  four  documents 
which  are  printed  side  by  side  in  the  Appendix.  When  their  con- 
tents have  been  studied  and  compared,  no  one  should  fail  to  per- 
ceive that  the  invention  as  denned  in  the  parent  document  of 
February  16, 1783,  was  simply  restated,  with  large  variations  of 
detail,  in  the  three  "plans"  completed  by  Madison,  Pinckney, 
and  Hamilton  a  short  time  before  the  meeting  of  the  Federal 
Convention  in  May,  1787.  Despite  the  fact  that  Madison  says, 
in  his  letters  of  March  and  April,  1787,  that  he  was  the  first 
to  complete  "a  sketch  on  paper,"  it  is  more  than  likely  that  the 
far  more  elaborate  sketches  embodied  in  the  plans  of  Pinckney 
and  Hamilton  were  completed  at  or  before  that  time.  And 
here  let  it  be  said,  to  the  honor  of  each  of  the  draftsmen  of  the 
three  plans,  that  no  one  of  them  ever  claimed  to  be  the  author 
No  draftsman  or  inventor  of  the  "wholly  novel  theory"  appropriated  by  all 
claimed  to  be  as  common  property.  If  they  failed  in  any  duty  it  was  in  the 
negative  one  of  declaring  at  the  time  that  their  work  was  based 
on  a  preexisting  invention  to  which  no  one  of  them  made  any 
personal  claim  whatever.  Such  a  claim  upon  the  part  of  either 
would  have  put  them  at  war  with  each  other,  a  conflict  that 
never  existed.  So  long  as  we  look  to  the  documents  for  his- 
tory, we  proceed,  according  to  the  ordinary  rules  of  common 
sense,  to  trace  three  reproductions,  identical  in  all  vital  particu- 
lars, to  a  common  source.  The  moment  the  normal  and  obvi- 
ous conclusion  thus  reached  is  rejected,  nothing  remains  but 
the  impossible  assumption  that,  in  some  miraculous  way,  the 
new  plan  was  revealed,  during  a  comparatively  few  months 
preceding  the  meeting  of  the  Convention,  to  three  youthful 
statesmen  working  in  isolation  and  far  removed  from  each 
other,  no  one  of  whom  ever  claimed  to  be  the  author  of  it. 
When  Tocqueville  declared  that  the  "wholly  novel  theory" 
was  "a  great  discovery  in  modern  political  science,"  when 
Gladstone  declared  that  the  new  Constitution,  whose  excellence 
depends  entirely  upon  that  theory,  was  "the  most  wonderful 
work  ever  struck  off  at  a  given  time  by  the  brain  and  the  pur- 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  43 

pose  of  man,"  neither  attempted  to  particularize  by  indicating 
that  the  novel  and  path-breaking  idea  originated  with  one  man, 
who,  at  a  given  time,  solemnly  submitted  it  to  the  world  as  his 
invention.  The  document  that  fixes  that  fact  was  not  access- 
ible to  either.  If  it  had  been,  could  either  have  hesitated  to 
conclude  that  in  this  case,  as  in  all  others,  a  radically  new  An  invention 
and  complicated  invention  must  have  had  a  personal  inventor  imPIies  a  Pef- 

sonal  inventor. 

specially  qualified  by  genius  and  special  study  for  the  achieve- 
ment? The  entire  history  of  inventions  repels  the  idea  that  such 
an  intellectual  performance  is  ever  a  corporate  act  arising 
impersonally  out  of  the  brains  of  many;  it  is  always,  in  its 
inception,  the  personal  product  of  the  brain  of  a  particular 
man  specially  qualified  by  nature  for  the  task.  In  this  case  the 
marvel  is  in  the  perfection  with  which  the  inventor  worked  out 
his  ideas  in  the  first  instance,  and  then  elaborated  them  in 
formulas  as  terse  and  lucid  as  any  ever  constructed  by  Bacon 
or  Burke. 

And  yet  after  all  has  been  said,  the  fact  remains  that  the  Work  of  the 
master  builders,  who  transformed  under  the  most  difficult  cir- 
cumstances  possible  the  dream  of  the  great  architect  into 
a  working  system  of  government,  achieved  a  result  just  as 
remarkable  as  the  invention  itself.   The  philosophers,  states- 
men, jurists,  warriors,  experienced  men  of  affairs,  who  com- 
posed the  august  assembly  that  wrought  at  Philadelphia  in 
1787,  may  be  compared,  as  to  genius  and  learning,  with  the  mas- 
ter spirits  of  any  age.1  As  colleagues  of  the  peerless  Washing- 
ton, who  had  himself  drawn  in  advance  three  new  constitu- 
tions, each  of  which  aimed  at  making  a  stronger  and  more 
perfect   union,2  Virginia   sent  her  governor,  Edmund  Ran-  Randolph, 
dolph,  who  afterwards  served  as  Attorney-General  and  Secre- 
tary of  State;  James  Madison,  the  draftsman  of  the  Virginia  Madison. 
plan  and  the  semi-official  reporter  of  the  Convention;  George 
Mason,  who  had  drafted  Virginia's  incomparable  bill  of  rights ; 3  Mason. 
and  George  Wythe,  the  great  law  teacher  at  William  and  Mary  Wythe. 

1  On  hearing  who  were  its  mem-          '  He  was  the  first  to  express,  in  a 
bers,  Jefferson  wrote   to   one  cor-  dogmatic  form,  in  that  instrument  the 
respondent  that  "the  Federal  Con-  principle  "that  the  legislative  and 
vention  is  really  an  assembly  of  executive  powers  of  the  state  should 
demigods."  Works,  ii,  260.  be  separate  and  distinct  from  the 

2  See  North  American  Review,  xxv,  judiciary." 
2,63. 


44 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Franklin. 
Wilson. 

Morrises. 

King. 
Gerry. 

Hamilton. 


Pinckneys. 


Rutledge. 


Butler. 


College  and  chancellor  from  1778  until  1798,  who  was  one  of  the 
very  first  to  assert  the  power  of  the  judiciary  to  put  the  stamp 
of  nullity  on  an  unconstitutional  law.1  From  Pennsylvania 
came  the  inspired  printer  Franklin,  the  philosopher,  statesman, 
and  diplomatist  who  had  drafted  the  Articles  of  Confederation ; 
James  Wilson,  the  profound  Scotchman  trained  at  the  Univers- 
ity of  Edinburgh,  whose  prophetic  eye  foresaw  and  whose  lips 
foretold  all  that  was  to  come ;  the  bitter-tongued  Gouverneur 
Morris,  who  did  more  than  any  other  to  give  to  the  Constitution 
its  final  form;  and  Robert  Morris,  the  bold  and  self-sacrificing 
financier  of  the  Revolution,  who  drew  so  freely  upon  his  own 
purse,  and  who  resigned  his  office  "rather  than  be  the  minister 
of  injustice."  From  Massachusetts  came  Rufus  King,  a  Har- 
vard graduate,  who  was  afterwards  Senator  from  New  York  and 
Minister  to  Great  Britain  from  1796  to  1803;  Elbridge  Gerry, 
also  a  Harvard  graduate  and  a  member  of  both  the  old  and  new 
Congress,  who  was  elected  Vice- President  in  1812,  dying  in 
office.  From  New  York  came  Alexander  Hamilton,  the  drafts- 
man of  perhaps  the  most  elaborate  scheme  of  government 
taken  to  the  Convention,  whose  brilliant  career  as  an  author  of 
"The  Federalist"  and  dominant  statesman  during  Washington's 
administration  has  fixed  his  fame  for  all  time.  From  South 
Carolina  came  Charles  Pinckney,  who,  at  twenty-nine,  drafted 
the  "system"  which,  despite  the  loss  of  the  original  text,  is 
surely  destined  to  be  recognized  as  one  of  the  most  potent 
forces  in  shaping  the  proceedings  that  followed  its  presenta- 
tion; Charles  Cotesworth  Pinckney,  his  kinsman,  who  was 
educated  at  Oxford  and  the  Middle  Temple,  served  with  dis- 
tinction in  the  Revolutionary  Army,  was  one  of  the  envoys  to 
France  in  1797,  and  the  Federalist  candidate  for  the  Presidency 
in  1804  and  1808 ;  John  Rutledge,  who  studied  law  in  London  at 
the  Temple,  served  in  the  Continental  Congress,  was  governor 
of  his  state  from  1779  to  1782,  and  finally  Chief  Justice  of  the 
United  States;  and  the  gifted  Pierce  Butler,  who,  underestimat- 
ing "the  dynamic  energy  of  freedom  in  producing  wealth,  and 
attracting  and  employing  and  retaining  population,"  2  vainly 


1  See  his  judgment  in  Com.  v. 
Caton,  4  Call  (Va.)  5-21.  In  the  lat- 
ter part  of  his  life  he  emancipated  his 
slaves. 


8  Bancroft,  History  of  the  Forma- 
tion of  the  Constitution  of  the  United 
States,  ii,  87. 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  45 

dreamed  that  swarms  of  emigrants  were  about  to  throng  every 
path  to  the  Southwest.  "North  Carolina,  South  Carolina,  and 
Georgia,"  he  said,  "will  have  relatively  many  more  people  than 
they  now  have.  The  people  and  strength  of  America  are 
evidently  bearing  to  the  South  and  Southwest."  *  From  Con- 
necticut came  Oliver  Ellsworth,  a  graduate  of  Princeton,  and  Ellsworth. 
Chief  Justice  of  the  United  States  from  1796  to  1800,  whose 
great  title  to  fame  rests  upon  the  fact  that  he  drafted  the 
Judiciary  Act  of  1789,  which  "may  be  said  to  reflect  the  views 
of  the  founders  of  the  Republic  as  to  the  proper  relations 
between  the  federal  and  state  courts"; 2  and  Roger  Sherman,  Sherman. 
who  rose  from  the  bench  of  a  shoemaker,  first  to  a  high  place 
at  the  bar  and  then  to  the  Senate  of  the  United  States.  From 
New  Jersey  came  William  Paterson,  the  draftsman  of  the  Paterson. 
plan  that  rested  upon  the  idea  that  the  proper  object  of  the 
Convention  was  a  mere  revision  and  extension  of  the  Articles 
of  Confederation.  From  North  Carolina  came  Alexander 
Martin,  William  R.  Davie,  Richard  Dobbs  Spaight,  and  Hugh  Martin,  Davie, 
Williamson,  who,  at  the  critical  moment,  prevented  a  cata-  Reason'  Wll~ 
strophe  and  saved  the  Convention  from  dissolution.  When  the 
Connecticut  compromise  —  which  proposed  that  the  new 
Congress  should  be  made  up  of  two  houses,  one  representing 
the  states  in  proportion  to  their  population,  the  other  giving 
an  equal  vote  to  each  state  —  was  trembling  in  the  balance, 
North  Carolina  saved  the  Convention  by  deserting  her  larger 
associates,  thereby  giving  a  majority  of  one  to  the  smaller 
states.  In  the  midst  of  that  crisis  it  was  that  Franklin,  for- 
getting the  mocking  skepticism  of  his  youth,  proposed  that 
the  Convention  should  be  opened  every  morning  with  prayer.3 
No  assembly  so  small  —  it  numbered  only  fifty-five  dele- 
gates—  was  ever  dominated  by  so  many  men  of  the  highest 
order.  They  need  not  strut  in  borrowed  plumes;  they  need  Need  no  fame 
no  fame  that  belongs  to  another.  The  most  ardent  wor-  not  their  own' 
shiper  of  the  master  builders  would  only  belittle  their  im- 
mortality if  he  fancied  that  it  could  be  at  all  dimmed  by  the 
rendition  of  tardy  justice  to  the  great  architect,  the  man  of 

1  Madison     Papers,     iii,     1091-  and  the  longer  I  live  the  more  con- 
1093;  Elliot,  308,  309.  vincing  proofs  I  see  of  this  truth  — 

2  Mr.  Justice  Field  in  Virginia  v.  that  God  governs  in  the  affairs  of 
Rives,  100  U.  S.  338.  men."  Madison  Papers,  ii,  985. 

*  "I  have  lived,  sir,  a  long  time, 


46 


THE  AMERICAN  CONSTITUTION 


[CH. 


Personal  con- 
duct of  Pela- 
tiah  Webster. 


His  two  bugle 
calls  of  1781 
and  1783. 


Record  of  Con- 
vention a  sealed 
book  to  him. 


contemplation,  who  was  their  natural,  perhaps  their  necessary 
forerunner. 

When  we  contemplate  the  personal  conduct  of  Pelatiah 
Webster,  in  the  midst  of  what  must  have  been  one  of  the  most 
trying  ordeals  through  which  a  creative  intellect  ever  passed, 
every  generous  mind  must  be  touched  by  his  steadfast  hope 
for  the  future,  his  self-sacrificing  patriotism  and  humility.  In 
closing  the  dissertation  in  which  he  announced  his  invention, 
he  made  this  stirring  appeal  to  the  men  who  were  to  take  up 
the  work  at  the  point  at  which  he  left  it:  "This  vast  subject 
lies  with  mighty  weight  on  my  mind,  and  I  have  bestowed  on 
it  my  utmost  attention,  and  here  offer  the  public  the  best 
thoughts  and  sentiments  I  am  master  of.  I  have  confined 
myself  in  this  dissertation  entirely  to  the  nature,  reason,  and 
truth  of  my  subject,  without  once  adverting  to  the  reception 
it  might  meet  with  from  other  men  of  different  prejudices  or 
interests.  To  find  the  truth,  not  to  carry  a  point,  has  been  my 
object.  I  have  not  the  vanity  to  imagine  that  my  sentiments 
may  be  adopted ;  I  shall  have  all  the  reward  I  wish  or  expect, 
if  my  dissertation  shall  throw  any  light  on  the  great  subject, 
shall  excite  an  emulation  of  inquiry  and  animate  some  abler 
genius  to  form  a  plan  of  greater  perfection,  less  objectionable 
and  more  useful."  In  response  to  his  first  bugle  call,  made  as 
Madison  tells  us  as  early  as  1781,  the  "Continental  Conven- 
tion" he  was  the  first  to  propose  assembled  in  May,  1787,  to 
make  a  new  Constitution;  in  response  to  his  second  bugle  call, 
made  February  16, 1783,  three  men  of  genius  went  to  that  Con- 
vention bearing  with  them  as  a  basis  for  its  action,  in  rigidly 
constructed  formulas,  his  invention, "  the  most  wonderful  work 
ever  struck  off  at  a  given  time  by  the  brain  and  purpose  of 
man."  In  the  full  sense  of  the  term  the  three  draftsmen  were 
men  of  genius,  who  did  all  that  remained  for  them  to  do.  The 
great  invention  having  been  made  in  advance,  they  could  not 
make  it  over  again ;  it  only  remained  for  them  to  restate  it  and 
adapt  it  to  the  practical  end  for  which  it  was  designed.  As 
each  draftsman  restated  the  new  theory  from  his  own  point  of 
view,  each  plan  may  be  compared  to  the  facet  of  a  diamond 
from  which  the  central  light  must  flash  at  the  angle  it  defines. 
As  the  proceedings  of  the  Convention  remained  a  sealed  book 
until  long  after  Pelatiah  Webster's  death  at  Philadelphia  in 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  47 

September,  1795,  he  of  course  never  saw  any  of  the  plans 
offered ;  nor  did  he  have  any  means  of  investigating  the  parlia- 
mentary processes  through  which  the  finished  product  finally 
arose  out  of  those  plans. 

Not  until  the  completed  instrument  was  given  to  the  world,  Webster  first 
after  the  adjournment  of  the  Convention  on  the  I7th  of  Sep-  todefendthe 
tember,  was  Pelatiah  Webster  able  to  greet  and  defend  the  tion. 
child  of  his  brain  with  a  father's  zeal  and  a  father's  love.  When 
on  the  29th  of  that  month  an  unpatriotic  minority  of  sixteen 
members  of  the  Assembly  of  Pennsylvania  —  after  attempting 
on  the  day  before  to  delay  by  breaking  a  quorum  the  reference 
of  the  new  Constitution  to  conventions  of  the  states  —  bit- 
terly assailed  it  in  an  address  to  their  constituents,  Webster's 
strong  right  arm  was  the  first  raised  to  defend  it.  In  falling 
upon  the  factious  secessionists  he  said: l  "It  appears  the  great 
object,  the  great  motive  of  this  desperate  step,  was  to  render 
ineffectual  a  resolution  of  the  House  (carried  by  forty-three 
against  nineteen) '  recommending  the  calling  of  the  convention 
to  consider  of  the  Constitution  proposed  by  the  Federal  Con- 
vention, and  to  approve  or  disapprove  of  the  same.'"  After 
answering  the  objections,  stated  in  the  address,  to  a  federal 
assembly  of  two  chambers,  very  nearly  in  the  language  in  which 
he  had  originally  proposed  such  an  assembly,  he  said:  "Vide  a  Refers  ex- 
'  Dissertation  on  the  Political  Union  and  Constitution  of  the  pr?*sly  to  his 
Thirteen  United  States,'  published  by  a  citizen  of  Philadelphia, 
February  16,  1783,  where  the  subject  is  taken  up  at  large." 
Then  in  defending  "  the  power  of  taxation  vested  in  Congress," 
which  he  had  also  been  the  first  to  propose,  after  summarizing 
his  original  argument  in  favor  of  it,  he  said:  "No  man  has  any 
right  to  find  fault  with  this  article,  till  he  can  substitute  a  bet- 
ter in  its  room."  In  replying  to  the  objection  of  the  sixteen 
"that  the  liberty  of  the  press  is  not  asserted  in  the  Constitu- 
tion," he  said :  "  I  answer,  neither  are  any  of  the  Ten  Command- 

1  This  remarkable  and  practically  mended  to  the  late  Federal  Conven- 

unknown  paper,  published  Oct.  12,  tion."    On  the  original  print,  to  be 

1787,  is  entitled  "Remarks  on  the  seen  in   the   Library  of   Congress, 

Address  of  sixteen  members  of  the  this  appears:  "Philadelphia.  Printed 

Assembly  of  Pennsylvania  to  their  by  Eleazer  Oswald,  at  the  Coffee 

constituents,  dated  Sep.  29,  1787,  House,    M.DCC.LXXXVII."     See  Ap- 

with  some  strictures  on  their  objec-  pendix  xix. 
tions  to   the  Constitution,  recom- 


48  THE  AMERICAN  CONSTITUTION  [Cn. 

ments,  but  I  don't  think  it  follows  that  it  was  the  design  of  the 
Convention  to  sacrifice  either  the  one  or  the  other  to  con- 
tempt." In  reasserting  the  supremacy  of  federal  law  he  said: 
"If  admitting  such  powers  into  our  Constitution  can  be  called 
a  sacrifice,  't  is  a  sacrifice  to  safety,  and  the  only  question  is 
whether  our  union  or  federal  government  is  worth  this  sacri- 
fice." In  conclusion  he  said:  "That  the  distresses  and  oppres- 
sions both  of  nations  and  individuals  often  arise  from  the  powers 
of  government  being  too  limited  in  their  principle,  too  inde- 
terminate in  their  definition,  or  too  lax  in  their  execution,  and 
of  course  the  safety  of  the  citizens  depends  much  on  full 
and  definite  powers  of  government,  and  an  effectual  execution 
of  them."  A  few  weeks  later,  when  "Brutus"  —  probably 
Robert  Yates,  a  member  of  the  Convention  from  New  York  — 
His  reply  to  made  a  like  assault,  Webster  was  ready  with  a  sharp  reply  in  a 
" Brutus-"  pamphlet  dated  Philadelphia,  November  4,  and  entitled,  "The 
Weakness  of  Brutus  Exposed :  or  some  remarks  in  vindication 
of  the  Constitution  proposed  by  the  late  Federal  Convention 
against  the  objections  and  gloomy  fears  of  that  writer."  l 
"Brutus  dwells,"  he  said,  "on  the  vast  powers  vested  in  Con- 
gress by  the  new  Constitution,  i.  e.,  of  levying  taxes,  raising 
armies,  appointing  federal  courts,  etc.;  takes  it  for  granted 
that  all  these  powers  will  be  abused,  and  carried  to  an  oppress- 
ive excess ;  then  harangues  on  the  dreadful  case  we  shall  be  in 
when  our  wealth  is  all  devoured  by  taxes,  our  liberty  de- 
stroyed by  the  power  of  the  army,  and  our  civil  rights  all  sacri- 
ficed by  the  unbounded  power  of  the  federal  courts.  And  when 
he  has  run  himself  out  of  breath  with  this  dreary  declamation, 
he  conies  to  the  conclusion  he  set  out  with,  viz.,  that  the  thir- 
teen states  are  too  big  for  a  republican  government,  which 
requires  small  territory,  and  can't  be  supported  in  more  ex- 
tensive nations."  To  that  Webster  answered:  "We  must  have 
money  to  support  the  Union,  and  therefore  the  power  of  raising 
it  must  be  lodged  somewhere;  we  must  have  a  military  force, 
and  of  consequence  the  power  of  raising  and  directing  it  must 
exist ;  civil  and  criminal  cases  of  national  concern  must  arise, 
therefore  there  must  be  somewhere  a  power  of  appointing 
courts  to  hear  and  determine  them.  These  powers  must  be 

1  "Printed  by  and  to  be  had  of  John  Sparhawk,  Market  Street,  near 
the  Court  House.     M.DCC.LXXXVII." 


II.]     GREAT  DISCOVERY  IN  MODERN  POLITICAL  SCIENCE  49 

vested  in  Congress;  for  nobody  pretends  to  wish  them  vested 
in  any  other  body  of  men."  In  conclusion  he  asks:  "By  what 
sort  of  assurance,  then,  can  Brutus  tell  us  that  the  new  Consti- 
tution, if  executed,  must  certainly  and  infallibly  terminate  in 
the  consolidation  of  the  whole  into  one  great  republic,  sub- 
verting all  the  state  authorities  ?  His  only  argument  is,  that 
the  federal  powers  may  be  corrupted,  abused,  and  misapplied, 
'till  this  effect  shall  be  produced.'"  Webster's  counterblast 
was:  "The  same  argument  will  prove,  with  equal  cogency,  that 
the  constitution  of  each  particular  state  may  be  corrupted  in 
practice,  become  tyrannical  and  inimical  to  liberty.  In  short, 
the  argument  proves  too  much,  and  therefore  proves  nothing: 
't  is  empty,  childish,  and  futile,  and  a  serious  proposal  of  it,  is, 
I  conceive,  an  affront  to  the  human  understanding."  After 
thus  disposing  of  the  despairing  Brutus,  he  concludes  with  this 
weighty  reflection:  "No  form  of  government  can  preserve  a  Weighty 
nation  which  can't  control  the  party  rage  of  its  own  citizens;  reflections- 
when  any  one  citizen  can  rise  above  the  control  of  the  laws, 
ruin  draws  near.  'T  is  not  possible  for  any  nation  on  earth  to 
hold  their  strength  and  establishment  when  the  dignity  of 
their  government  is  lost,  and  this  dignity  will  forever  depend 
on  the  wisdom  and  firmness  of  the  officers  of  the  government, 
aided  and  supported  by  the  virtue  and  patriotism  of  their  citi- 
zens; .  .  .  the  grand  secret  of  forming  a  good  government  is, 
to  put  good  men  into  the  administration." 

As  the  new  Constitution,  which  Webster  first  designed  and  Canonization 
then  defended,  grew  into  a  popular  idol,  and,  as  such,  passed  constitution 
through  a  process  of  canonization,  the  master  builders  who 
composed  the  Convention  came  to  be  regarded  rather  as  demi- 
gods than  as  men.  But  while  they  were  being  thus  exalted,  and 
justly,  the  veil  of  secrecy  —  which  for  fifty- four  years  was  not 
entirely  lifted  from  all  that  took  place  within  the  secret  con- 
clave —  concealed  from  the  eyes  of  the  world  the  Titanic 
figure  in  the  background  that  is  now  looming  up  large  on  the 
distant  horizon  and  becoming  more  and  more  distinct  in  the 
light  of  its  increasing  glory.  With  a  perfect  comprehension  of 
the  grandeur  of  his  achievement,  and  with  a  trusting  faith  in 
the  justice  to  be  done  him  in  the  time  to  come,  the  great  archi- 
tect took  the  precaution  in  1791  to  republish  his  disserta- 
tion with  notes,  in  which  he  stated  with  considerable  detail  the 


THE  AMERICAN  CONSTITUTION 


Webster's 
republication 
and  appeal 
to  posterity. 


circumstances  attending  its  original  publication.  At  the  close 
of  that  republication  he  made,  with  stately  dignity  and  humil- 
ity, this  appeal  to  posterity:  "But  if  any  of  those  questions 
should  in  future  time  become  objects  of  discussion,  neither  the 
vast  dignity  of  the  Convention,  nor  the  low,  unnoticed  state  of 
myself,  will  be  at  all  considered  in  the  debates  ;  the  merits  of  the 
matter,  and  the  interests  connected  with  or  arising  out  of  it,  will 
alone  dictate  the  decision."  That  appeal  and  the  document 
of  February  16,  1783,  survive  as  immortalities.  The  eminent 
French  critic  and  historian  Ch.-V.  Langlois  has  said:  "History 
is  studied  from  documents.  Documents  are  the  traces  which 
have  been  left  by  the  thoughts  and  actions  of  men  of  former 
times.  There  is  no  substitute  for  documents  :  no  documents,  no 
history."  While  the  priceless  legacy  bequeathed  by  the  immor- 
tal document  of  February  16,  1783,  has  become  the  heritage  of 
swelling  millions,  an  humble  and  neglected  grave  at  Phil- 
adelphia 1  has  been  the  only  recompense  so  far  received  by  its 
author.  Every  drummer  boy,  every  foreigner  who  rendered 
conspicuous  service  to  the  patriot  cause  during  the  Revolu- 
tionary era  has  been  honored  by  a  monument,  —  only  the 
architect  of  our  Federal  Constitution  has  been  forgotten. 


i  "  Pelatiah  Webster,  the  eldest 
son  of  Pelatiah  and  Joanna  (Smith) 
Webster,  and  grandson  of  George 
and  Sarah  Webster,  of  Lebanon, 
Connecticut,  was  born  in  Lebanon, 
on  November  24,  1726.  ...  He  died 
in  Philadelphia,  September  10, 1795, 
in  his  69th  year.  His  wife  died  in 
Philadelphia  of  the  yellow  fever,  in 
October,  1793,  and  their  only  son 
died  early.  Their  two  daughters 
[Ruth  and  Sophia]  married,  respect- 


ively,  John  and  Thaddeus  Perit, 
and  three  of  their  children  were 
graduated  at  Yale."  Dexter's  Yale 
Biographies  and  Annals,  ii,  97  to 
102.  The  son  of  Ruth  Webster  and 
John  Perit  was  Pelatiah  Webster 
Perit,  a  famous  New  York  mer- 
chant, who  was  for  many  years 
president  of  the  Chamber  of  Com- 
merce in  that  city.  See  Perkins, 
Old  Houses  of  Norwich,  Conn.,  322. 


CHAPTER  III 

THE  EVOLUTION   OF  THE  TYPICAL  AMERICAN   STATE 

THE  two  most  important  single  events  in  the  history  of  the  The  two 
western  world  were  the  Anglo-Saxon  migration  from  the  Con- 
tinent  into  Britain,  which  began  about  the  middle  of  the  fifth 
century,  and  the  Anglo-Saxon  migration  from  Britain  to  the 
eastern  coast  of  North  America,  which  began  early  in  the 
seventeenth  century.  Out  of  the  first  migration  grew  the  dom- 
inant state  in  Britain  known  as  England,  out  of  the  second 
grew  the  forty-six  reproductions  of  that  state  which  now  con- 
stitute the  American  Commonwealth.  When  the  two  migra- 
tions are  viewed  as  a  connected  whole  it  is  easy  for  the  student 
of  the  Science  of  Politics,  who  recognizes  the  law  of  growth  as 
the  law  of  constitutional  life,  to  trace  the  mighty  stream  of 
Teutonic  democracy  from  its  sources  in  the  village  moots  and 
state  assemblies  of  Friesland  and  Sleswick  across  the  Northern 
Ocean  into  Britain,  and  across  the  Atlantic  into  North  Amer- 
ica. By  that  process  it  is  possible  to  demonstrate  that  the  Fed- 
eral Republic  of  the  United  States  is  the  lineal  descendant  of 
those  ancient  German  tribal  federations  of  which  we  catch  our 
first  glimpses  in  the  pages  of  Caesar  and  Tacitus.  In  the  entire  Unbroken 
history  of  institutions  it  is  impossible  to  find  any  example  so 
striking  of  the  persistent  and  unbroken  development  of  polit- 
ical organization  from  its  primitive  forms  in  the  simple  life  of 
the  barbarian  up  through  all  the  advancing  stages  of  civiliza- 
tion to  the  climax  in  the  most  complex  political  organism  that 
ever  existed. 

Through  the  first  migration  the  Teutonic  invaders  trans-  Growth  of  the 
f erred  from  the  fatherland  into  Britain  that  tenacious  system  English  state 

.      J  in  Britain. 

of  local  self-governing  communities  out  of  whose  union  arose 
the  old  English  commonwealth,  which  represented  an  aggre- 
gation of  shires,  —  each  shire  representing  an  aggregation  of 
hundreds,  each  hundred  an  aggregation  of  townships.  When 
the  Norman  came  he  seized  the  central  powers  of  the  state,  and 
upon  the  Old-English  system  as  a  substructure  he  built  up 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Substantial 
identity  of 
two  great 
settlements. 


Darwin's 
statement. 


Two  migra- 
tions con- 
trasted. 


a  new  central  system  as  a  superstructure,  and  out  of  the  fusion 
between  the  two  gradually  emerged  the  English  Constitution  as 
it  exists  to-day.  The  English  emigrants  who  founded  upon  the 
eastern  coast  of  what  is  now  the  United  States  a  group  of 
colonial  commonwealths  brought  with  them  in  their  blood  and 
bone  that  peculiar  system  of  state  organization  which  had  been 
thus  maturing  in  an  island  world  for  more  than  a  thousand 
years.  They  brought  with  them  ready-made  the  language,  the 
laws,  the  political  institutions  of  the  old  land,  to  be  modified 
and  adapted  to  the  changed  conditions  of  the  new.  The  settle- 
ments made  by  the  English  colonists  in  America  in  the  seven- 
teenth century  were  in  all  material  particulars  substantial 
reproductions  of  the  English  settlements  made  in  Britain  in 
the  fifth.  In  both  instances  the  settlers  crossed  the  sea  in  ships 
in  small  companies,  and  in  both  lands  they  grouped  themselves 
together  in  distinct  and  practically  independent  self-governing 
communities.  The  thirteen  English  colonies  that  arose  on  our 
Atlantic  seaboard  out  of  the  aggregation  of  such  communities 
were  in  no  sense  artificial  creations,  —  they  were  the  predes- 
tined product  of  a  natural  process  of  reproduction.  American 
constitutional  history  therefore  begins,  not  with  the  landing 
of  the  English  in  America  in  the  seventeenth  century,  but  with 
the  landing  of  the  English  in  Britain  in  the  fifth. 

Out  of  the  Anglo-Saxon  migration  across  the  Atlantic,  which 
Darwin  once  said  may  very  likely  be  the  most  important  event 
in  human  history,  grew  the  thirteen  colonial  commonwealths 
that  fringed  our  Atlantic  seaboard  towards  the  close  of  the 
eighteenth  century,  and  out  of  their  union  finally  arose  the 
Federal  Republic  of  the  United  States.  The  founders  of  these 
English  states  in  America,  who  crossed  the  sea  in  ships  in 
small  companies,  expelled  the  native  race,  and  then  replanted 
their  ancient  and  peculiar  system  of  political  institutions  in  a 
free  and  unencumbered  soil  from  which  they  drew  absolutely 
nothing.  The  political  communities  thus  replanted  as  exotics 
were  reproductions  in  a  modified  form  of  the  mother  state 
known  as  England.  Something  like  eight  centuries  before,  that 
mother  state  arose  out  of  a  series  of  settlements  made  by  a  set 
of  Low-Dutch  tribes,  known  as  Engles,  Saxons,  and  Jutes,  who 
likewise  crossed  the  sea  in  ships  in  small  companies,  and,  after 
expelling  the  native  race  within  a  given  area,  created  in  Britain 


III.]    EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  53 

"a  Germany  outside  of  Germany."  l  The  mother  state  thus 
replanted  as  an  exotic  on  a  foreign  soil  drew  therefrom  prac- 
tically nothing.  So  for  the  fatherland  of  the  English  race  we 
must  look  far  away  from  England  itself.  At  the  time  of  the 
migrations  into  Britain  the  Engles,  or  at  least  a  portion  of 
them,  were  residing  in  Angeln,2  or  Engleland,  within  the  dis- 
trict which  is  now  called  Sleswick,  while  the  main  body  lay 
probably  in  what  is  now  Lower  Hanover  and  Oldenburg.  On 
one  side  of  them  the  Saxons  of  Westphalia  occupied  the  land 
from  the  Weser  to  the  Rhine;  on  the  other,  the  Eastphalian 
Saxons  stretched  away  to  the  Elbe;  while  to  the  north  of  the 
fragment  of  the  English  folk  in  Sleswick  lay  another  kindred 
tribe,  the  Jutes,  whose  name  is  still  preserved  in  their  district 
of  Jutland.  The  three  tribes  were  of  the  purest  Teutonic  type, 
and  all  spoke  dialects  of  the  Low  German.  Upon  these  data 
was  based  the  statement  heretofore  made  that,  by  the  aid  of 
the  historical  method,  it  is  not  difficult  to  trace  the  mighty 
stream  of  Teutonic  democracy  from  its  sources  in  the  village 
moots  and  state  assemblies  of  Friesland  and  Sleswick  across 
the  Northern  Ocean  into  Britain,  and  across  the  Atlantic  into 
North  America.  The  student  of  American  constitutional  his- 
tory  must  therefore  take  as  his  srarting-pninr  tfrp  primrtiw  Thestarting- 
politicai  institutions  of  the  three  tribes  before  the  migration 
into  bntain  began;  and  for  that  starting-point  he  must  look 

_t i -* — n*"?-*  >LL-«' "**•  T*   «At<  ^Hifc  ii  ••••^•«» 

to  the  brief  history  ofjfre  childhood  of  the  whole  Teutonic 
race  as"contained  in  those  terse  sketches  of  the  ancient  freedom 
which  have  been  preserved  by  Caesar  and  Tacitus.3 

Thai:  homogeneous  race  called  Teutonic,  although  possessed  CMtas  of 
of  a  common  system  of  social,  religious,  and  political  institu- 
tions,  was  nevertheless  broken  up  into  an  endless  number  of 
communities  or  states,  which  stood  to  each  other  in  complete 
political  isolation,  except  when  united  in  temporary  confeder- 
acies. In  their  general  descriptions  of  the  German  people  both 
Caesar  and  Tacitus  had  constantly  in  mind  the  existence  of 
these  disconnected  states  into  which  the  race  as  a  whole  was 

1  Taine,  Hist,  of  Eng.  Literature,  within  the  district   which  is  now 

i,  50.  called   Sleswick."    Green,   Hist,   of 

9  "In  the  fifth  century  after  the  the  Eng.  People,  i,  87. 
b»rth   of   Christ   the   one   country          8  De  Bello  Gallico,  vi,  23;  Ger- 

which  we  know  to  have  borne  the  mania,  cc.  8,  10,  12,  13,  14,  15,  19, 

name   of   Angeln   or   England   lay  25,  30,  41. 


54 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Pagus,  gau, 
or  shire. 


Four  classes. 


subdivided,  and  which  each  termed  the  civitas,  with  the  ex- 
planation that  what  was  true  of  the  race  in  one  state  was  true 
of  the  race  in  all  the  states,  excepting,  perhaps,  the  few  particu- 
lars in  which  the  monarchical  differed  from  the  non-monarch- 
ical. The  primary  bond  that  united  the  people  of  a  state 
(civitas)  was  a  personal  one ;  the  king  was  the  head  of  the  race, 
the  first  among  the  people,  and  not  the  king  of  a  particular  area 
of  territory.  The  largest  division  of  such  a  state  is  usually  de- 
signated in  Latin  pagus;  in  German,  gauor  ga;  in  Old-English, 
scir  or  shire,  terms  that  finally  gave  rise  on  the  Continent  to 
the  word  "hundred."  The  hundreds  were  divided  into  village 
communities,  the  vici  of  Tacitus,  who  says  that  Teutonic  so- 
ciety embraced  four  ranks  or  classes:  the  nobles,  simple  free- 
men, freedmen,  and  slaves.  These  four  classes  dwelt  either  in 
villages,  vici,  with  a  series  of  adjoining  buildings,  every  home- 
stead having  a  vacant  space  of  ground  about  it ;  or  apart  from 
villages  in  isolated  homesteads,  wherever  a  grove,  meadow,  or 
spring  happened  to  attract  them.  The  following  diagram 
illustrates  in  a  general  way  this  primitive  system  of  state 
organization  which  is  the  starting-point  of  everything. 

THE  STATE  (civitas) 


jj  ^ 

db 

ro 

«^> 

=f 

v^§^J 

^^ 

13 

:W.t 

CSD 

•3  -  f^ 

o 

g« 

cao' 

The  village 
community. 


The  vicus  represents  the  Teutonic  form  of  the  village  com- 
munity, and  the  portion  of  territory  occupied  by  it  is  termed 
in  the  German  muniments  the  "mark,"  a  place  marked  with 
definite  boundaries.  In  the  mark-moot  or  town-meeting  was 
transacted  all  the  business  that  arose  out  of  the  system  of 
common  cultivation,  and  out  of  the  enjoyment  of  common 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  55 

rights.1  The  German  mark  became  the  English  township, 
which  was  reproduced  in  its  primitive  form  in  New  England, 
with  its  town-meeting  and  common  lands,  intact.  The  affairs 
of  Boston  continued  to  be  administered  by  its  town-meeting  Boston, 
down  to  1822,  when  its  qualified  voters  numbered  seven  thou- 
sand.2 Despite  the  fact  that  when  the  population  of  a  New 
England  town  exceeds  10,000  or  12,000,  it  is  usual  for  it  to  be 
incorporated  as  a  city,  "the  town  system  is  the  general  one; 
the  city,  or  representative  system,  is  the  exceptional  one."  8 

By  the  union  of  two  or  more  marks  was  formed  the  pagus,  The  hundred 

gau,  or  shire,  known  in  later  times  as  the  hundred.   "The  hun-  *nd,the  hun" 

died  court. 

dred,  and  the  principle  that  the  hundred  community  is  a  judi- 
cial body  outlived  the  storms  of  the  folk  wanderings,  the  polit- 
ical creations  of  Clovis,  the  reforms  of  Charlemagne,  the  dis- 
solution of  the  Prankish  Empire,  the  dissolution  of  the  county 
system."  4  The  hundred  court,  like  all  other  Teutonic  courts, 
was  a  popular  assembly,  composed  of  all  freemen  resident  in 
the  district.  In  this  court  was  administered  regularly  and  fre- 
quently the  customary  law;  it  met,  perhaps,  once  a  month,  and 
in  addition  to  its  judicial  duties,  it  discharged  many  adminis- 
trative functions.  In  the  state  assembly  a  chief  was  chosen  to 
act  as  a  magistrate  in  each  hundred.  He  presided  in  the  hun- 
dred court  and  with  him  were  associated  a  hundred  assessors, 
chosen  from  the  body  of  the  people,  who  attended  to  give  their 
advice  and  to  strengthen  the  hands  of  justice.  As  by  a  union  of 
two  or  more  marks  the  hundred  was  formed,  so  by  the  union 
of  two  or  more  hundreds  the  state  was  formed.  The  supreme 
powers  of  the  state  were  vested  in  a  state  assembly,  in  which  The  state 
every  freeman  had  his  place ;  each  had  an  equal  voice ;  and  it  assembly, 
was  the  custom  for  all  to  appear  fully  armed.  The  business 
presented  was  all  prepared  beforehand  by  a  permanent  council 
composed  of  the  magistrates,  principes,  who  decided  all  minor 
questions,  reserving  only  the  graver  ones  for  the  consideration 
of  the  whole  people.  In  the  state  assembly,  as  a  high  court  of 
justice,  accusations  were  exhibited,  and  capital  offenses  prose- 
cuted.5 Those  guilty  of  treason  and  desertion  were  hanged  ; 

1  G.  L.  von  Maurer,  Markenver-  i,  101,  and  note;  Fiske,  American 

fassung,  142;  Einleitung,  141-150.  Political  Ideas,  33. 

8  See  Josiah  Quincy's  Municipal  4  Sohm,DiefrdnkischeReichs-und 

Hist,  of  Boston,  28,  41.  Gerichtsver fas  sung,  i,  541. 

'  Dillon,  Municipal  Corporations,          6  Sohm,  loc.  cit.,  p.  5. 


THE  AMERICAN  CONSTITUTION 


[CH. 


Military 
organization. 


Transfer  of 
institutions. 


Period  of 
Teutonic 
conquest. 


those  guilty  of  cowardice  and  unnatural  vices  were  suffocated 
in  the  mud.  All  other  offenses  could  be  atoned  for  by  fines, 
a  part  of  which  was  paid  to  the  king  or  state  and  part  to  the 
person  injured  or  to  his  family. 

So  closely  did  the  scheme  of  military  organization  resemble 
the  system  of  political  organization,  that  a  comparison  has 
happily  been  made  between  the  state  in  its  territorial  aspect 
and  the  army  in  permanent  encampment.1  The  mass  of  the 
people  fought  together  in  groups  that  represented  the  village 
communities ;  each  pagus  or  hundred  contributed  its  hundred 
warriors  to  the  host ;  while  the  third  element  of  the  army  con- 
sisted of  bands  of  professional  warriors,  united  to  a  leader  of 
their  choice  in  a  close  and  peculiar  clanship,  called  the  comi- 
tatus.  When  the  whole  people  were  in  arms  we  have  "popular 
assembly,  parliament,  law  court,  and  army  all  in  one."  2  In 
other  words,  the  primitive  Teutonic  state  was  a  personal 
organization,  a  marching  military  state.  It  is  therefore  easy 
to  understand  how  an  army  of  invasion,  composed  either  of  the 
whole  people  of  a  state  or  of  a  single  division,  embodied  in 
its  organization  the  primitive  political  system,  which  it  would 
naturally  reproduce,  in  whole  or  in  part,  whenever  a  settle- 
ment was  made  in  conquered  territory.  If  the  expedition 
happened  to  be  composed  of  a  single  group  of  kindred,  upon 
a  settlement  being  made  in  a  new  land  its  members  would 
naturally  draw  together  upon  the  old  plan  in  a  village  com- 
munity.3 If  the  expedition  happened  to  be  composed  of  many 
groups,  united  under  a  common  leadership,  a  cluster  of  village 
communities  would  as  naturally  result.  After  the  units  of 
organization  had  thus  been  reproduced  and  brought  into 
contact,  first  the  hundred  and  last  the  state  (civitas)  would 
reappear.  With  these  facts  firmly  in  hand  it  is  comparatively 
easy  to  understand  how  the  transfer  of  the  primitive  Teutonic 
system  from  the  Continent  into  Britain  was  brought  about. 

During  the  century  and  a  half  that  intervened  between  the 
middle  of  the  fifth  century  and  the  end  of  the  sixth,  the  Teu- 


1  Stubbs,  Constitutional  History, 
i,  31. 

8  Essays  in  Anglo-Saxon  Law,  p.  8. 

*  "And  as  they  fought  side  by 
side  on  the  field,  so  they  dwelled 
side  by  side  on  the  soil.  Harling 


abode  by  Harling,  and  Billing  by 
Billing;  and  each  '  wick '  or  '  ham '  or 
1  stead '  or  '  tun '  took  its  name  from 
the  kinsmen  who  dwelled  together 
in  it."  Green,  Hist,  of  the  Eng. 
People,  i,  10. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  57 

tonic  settlements  in  Britain  were  made.    Within  that  period 

the  whole  island,  south  of  the  firths  of  Forth  and  Clyde,  passed 

from  the  possession  of  the  native  race  to  that  of  the  conquerors, 

with  the  serious  exception  of  a  broad  and  almost  continuous 

strip  of  country  extending  along  the  entire  western  coast,  and 

embracing  North  and  West  Wales,  Cumbria,  and  Strathclyde. 

Within  that  area  the  entire  native  or  Welsh  population  with- 

drew, with  whatever  of  civilization,  religion,  or  law  they  had 

derived  from  Rome.    In  that  part  of  the  land  the  conquerors 

made  their  own,  they  planted  the  entire  fabric  of  Teutonic 

life  —  social,  political,  and  heathen  —  which  they  had  brought 

with  them  in  their  blood  and  bone  from  the  fatherland.   It  is 

therefore  impossible  'to  exaggerate  the  importance  of  this 

period  of  conquest  and  settlement,  —  it  is  the  starting-point 

of  everything.    At  the  moment  that  period  ends  Christianity  Christianity 

begins,  and  from  its  introduction  the  committing  of  the  cus- 


ternary  law  to  writing  appears  to  have  begun.1  Just  before  the 

end  of  the  eighth  century,  we  have  the  "  Ecclesiastical  History  " 

of  Baeda,  from  which  is  derived  the  only  substantial  account  of 

the  century  and  a  half  that  followed  the  coming  of  Augustine. 

To  these  imperfect  records  have  been  added  the  fruits  of  the 

most  exhaustive  archaeological  and  geographical  research.  The 

one  fact  we  learn  from  these  sources  that  stands  out  in  im- 

portance above  all  the  rest  is  that  the  Teutonic  conquerors  of 

Britain  founded  at  the  outset  what  are  generally  known  as  the  The  rice  or 

early  kingdoms  which  were  genuine  reproductions  of  the  states  ear  y  mg  om* 

(civitates)  described  by  Caesar  and  Tacitus  2  and  illustrated  by 

the  foregoing  diagram.  In  tun-moot  as  in  mark-moot  the  as- 

sembled villagers  met  to  regulate  their  local  and  agricultural 

concerns;  in  the  gemot  or  meeting  of  all  the  freemen  resident 

within  the  pagus  or  early  shire,  we  have  in  fact,  if  not  in  name, 

the  hundred  court  of  the  Continent;  while  the  primitive  state 

assembly  is  the  folk-moot,  the  meeting  of  the  whole  people  in 

arms.    These  early  kingdoms,  which  preserved  their  ancient 

boundaries,  their  national  assemblies  or  folk-moots,  and  for 

1  The  promulgation  of  the  laws  of          2  "  The  civitas  or  populus  of  Taci- 

^Ethelberht  took  place  at  some  time  tus,  the  union  of  several  pagi,  is 

between  the  coming  of  Augustine  in  in  Anglo-Saxon  history  the  rice  or 

596  and  his  death  in  605.     Baeda  kingdom."     Stubbs,     Const.   Hist., 

says  these  laws  were  enacted  "cum  i,  119. 
consilio  sapientium."  Hist.  Eccl.,  ii,  5. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Origin  of  the 
modern  shire. 


Process  of 
aggregation. 


a  long  time  their  tribal  kings,  became  shires  or  counties  in  the 
aggregation  finally  known  as  the  Kingdom  of  England.  The 
map  of  England  of  to-day  clearly  discloses  the  origin  of  the 
modern  shire  in  what  may  be  called  the  primitive  rice  or  king- 
dom. Out  of  the  principalities  founded  by  the  Somersaetas,  the 
Dorssetas,  the  Wilsaetas,  the  Middle  Saxons,  the  East  Saxons, 
the  South  Folk,  the  North  Folk,  have  grown  the  shires  of  Som- 
erset, Dorset,  Wilts,  Middlesex,  Essex,  Suffolk,  and  Norfolk. 
Hampshire,  Berkshire,  and  Devonshire  are  equally  ancient, 
being  mentioned  in  the  "Chronicle"  as  shires  as  far  back  as 
^Ethelwulf.1  Kent  and  Sussex  are  two  of  the  heptarchic  king- 
doms whose  original  shires  are  perhaps  represented  by  their 
lathes  and  rapes.  In  Wessex  the  shire  system  attained  its  earli- 
est and  purest  development.  The  West  Saxon  shires  retain  to 
this  day  the  names  and  boundaries  of  the  early  settlements 
founded  by  the  successors  of  Cerdic.  It  is  more  than  likely, 
however,  from  the  evidence  of  local  nomenclature  that  Mercia 
was  artificially  divided  into  shires  by  the  English  kings  after 
the  reconquest  from  the  Danish  invaders.2  The  Kingdom  of 
England  is,  in  fact,  a  mere  aggregation  of  shires,  whose  govern- 
ments represent  the  entire  local  machinery  of  the  Constitution. 
It  is  all  important  to  grasp  at  least  the  outline  of  the  process 
of  aggregation  out  of  which  the  Kingdom  of  England  finally 
arose.  While  the  development  of  Germany  advanced  in  the 
path  of  political  consolidation,  that  of  England  advanced  in 
the  path  of  political  confederation.  The  course  of  that  develop- 
ment is  broken  into  two  well-defined  epochs:  the  first,  em- 
bracing the  drawing  together  of  the  early  kingdoms  into  the 
seven  or  eight  aggregates  generally  known  as  the  heptarchic 
states;  the  second,  the  drawing  together  of  the  heptarchic 
states  into  the  one  united  kingdom  of  all  the  English  under 
the  House  of  Cerdic.  When  written  history  first  reveals  to  us 
through  the  pages  of  Bseda  the  form  the  new  society  in  Britain 
had  assumed,  the  seven  or  eight  aggregates,  generally  known  as 
the  heptarchic  states,  were  even  then  manifesting  a  tendency  to 
group  themselves  in  three  great  masses,  soon  to  be  known  as 
the  kingdoms  of  Northern,  Central,  and  Southern  Britain.8 


1  E.  Chron.,  a.  851,  860. 
*  Freeman,  Norm.  Conquest,  i,  32, 
and  Appendix,  note  E. 


8  Green.  The  Making  of  England, 
299  n. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  59 

By  593  it  is  probable  that  this  threefold  division  was  clearly  Threefold  di- 
established.  How  to  destroy  it  so  as  to  unite  the  whole  English  jj^^en 
nation  under  the  rule  of  a  single  overlord  was  a  problem  that  two  centuries 
required  for  its  solution  a  period  of  more  than  two  hundred  °*  struggles, 
years.   The  first  effort  to  establish  such  a  unity,  clearly  fore- 
shadowed and  encouraged  by  the  unity  of  the  church,  was 
made  by  Northumbria,1  whose  supremacy  was  established  over 
all  the  English  kingdoms  except  Kent.  With  her  failure  in  659 
Mercia  essayed  the  task,  but  despite  the  fact  that  Offa,  who 
succeeded  to  the  throne  in  758,  rose  high  enough  to  aspire  to  a 
correspondence  on  equal  terms  with  Charles  the  Great,  he  was 
never  able  to  establish  his  overlordship  over  either  of  the  rival 
kingdoms  of  Northumbria  and  Wessex.2  To  the  latter,  which 
grew  out  of  a  small  settlement  made  on  the  coast  of  Hamp- 
shire by  an  invading  host  led  by  the  ealdormen,  Cerdic  and 
Cynric,  was  to  come  the  final  victory.   In  825  Ecgberht,  after  Triumph  of 
extending  the  supremacy  of  Wessex  to  the  Land's  End,  ven-  Wessex  in  825. 
tured  in  the  hour  of  victory,  for  once  at  least,  to  style  himself 
King  of  the  English.3  Through  his  conquests  all  the  Teutonic 
states  in  Britain  became  mere  dependencies  of  Wessex,  as 
under-kingdoms.    Not,  however,  until  after  a  century  and  a 
half  had  passed  by  did  these  loosely  united  states  become 
incorporated  as  integral  parts  of  one  consolidated  kingdom. 
That  result  was  accomplished  during  the  reign  of  Eadgar  the  Eadgar  the 
Peaceful,  which  began  in  958.    The  growth  of  a  real  national  Peacefu1'  958. 
unity  was  now  complete ;  the  consolidated  Kingdom  of  Eng- 
land was  made  not  only  in  fact  but  in  name.    "Wessex  has 
grown  into  England,  England  into  Great  Britain,  Great  Brit- 
ain into  the  United  Kingdom,  the  United  Kingdom  into  the 
British  Empire."  4 

With  the  triumph  of  Ecgberht  began  the  work  of  consolida-  Work  of 
tion  which  occupied  nearly  a  century  and  a  half  in  its  comple-  consolidatlon- 
tion.    In  that  process  local  kingship  became  extinct,  and  the 
primitive  states  were  finally  incorporated  with  Wessex,  —  they 

1  Under  Eadwine,  E.  Chron.,  a.  Hoveden,  preface  to  vol.  i,  Ixxxix, 

617.  Rolls  Series. 

8  The    Mercian   supremacy   was  8  "Ecgberhtus  gratia    Dei   Rex 

broken  by  the  West  Saxons  in  754  Anglorum."     Codex    Diplomaticus 

upon  the  field  of  Burford.  E.  Chron.  JEvi  Saxonici,  i,  287. 

a.  752.  From  752  to  848  the  entries  *  Freeman,  Norman  Conquest,  i, 

of  the  English  Chronicle  are  wrong  16. 
by  two  years.  See  Stubbs,  Roger  of 


6o 


THE  AMERICAN  CONSTITUTION 


[CH. 


Ancient  state 
becomes  mod- 
ern shire. 


State  assem- 
bly survives 
as  shire-moot. 


Germs  of  jury 
system  and 
representative 
system. 


ceased  to  exist  as  states  and  became  shires.  And  as  the  prim- 
itive states  thus  descended  in  status,  their  own  shires  necessa- 
rily descended  in  the  same  way,  —  they  ceased  to  be  shires  and 
became  hundreds.  Thus  it  may  be  assumed,  as  a  general  prin- 
ciple, "that  the  state  of  the  seventh  century  became  the  shire 
of  the  tenth,  while  the  shire  of  the  seventh  century  became  the 
hundred  of  the  tenth."  1  The  use  of  the  word  "shire"  in  the 
enlarged  and  modern  sense  seems  to  have  been  introduced  dur- 
ing or  shortly  after  the  reign  of  Ecgberht ;  but  the  name  of  the 
hundred  does  not  occur  until  the  laws  of  Eadgar,2  in  whose 
time  the  arrangement  of  the  whole  kingdom  in  shires  was  prob- 
ably completed.  After  that  event  the  consolidated  kingdom 
is,  in  fact,  a  mere  aggregation  of  shires,  whose  governments 
represent  the  entire  local  machinery  of  the  Constitution.  Or, 
to  state  the  matter  in  another  form,  now  the  kingdom  forms 
a  new  whole,  of  which  the  shires  have  sunk  to  be  mere  adminis- 
trative divisions.  But  in  descending  to  the  status  of  a  shire,  the 
primitive  state  preserved  substantially  all  its  powers  as  a  self- 
governing  community.  While  the  tribal  king  has  passed  away, 
and  his  place  has  been  filled  by  the  ealdorman,  who  stands  in  the 
government  of  the  shire  as  the  deputy  of  the  national  king,  the 
popular  assemblies  of  the  primitive  state  all  survive  as  parts 
of  the  shire  system.  The  primitive  state  assembly  is  the  folk- 
moot,  the  highest  popular  court  of  the  shire,  and  as  such  it 
retains  some  traces  of  the  ancient  nationality.  It  survives  as 
the  shire  court  of  the  modern  shire,  while  the  primitive  shire 
court  survives  as  the  hundred  court  of  the  consolidated  king- 
dom, the  ordinary  law  court  in  which  cases  are  heard  in  the 
first  instance.  Beneath  the  hundred  courts  stand  the  tun- 
moots,  the  governing  bodies  of  the  village  communities  or 
townships.  In  the  organization  of  these  local  courts  the  funda- 
mental Teutonic  principle  is  preserved  intact;  the  adminis- 
tration of  law,  as  well  as  political  administration,  is  vested  in 
an  expanding  series  of  popular  assemblies  composed  of  the 
qualified  freemen  whose  interests  are  directly  involved.  In 
these  popular  assemblies  of  the  hundred  and  the  shire  the  cus- 
tomary law,  the  jury  system,  and  its  twin  brother,  the  repre- 

1  See  essay  upon  the  "Anglo- 
Saxon  Courts  of  Law,"  by  Henry 
Adams,  in  Essays  in  Anglo-Saxon 
Law,  19. 


2  Eadgar,  i,  Constitutio  de  hun- 
dredis. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  6l 

sentative  system,  were  born  and  nurtured.  The  earliest  mani- 
festation of  the  representative  principle  appears  in  the  form  of 
the  reeve  and  four  selected  men,  who  represent  the  township 
in  the  courts  of  the  shire  and  the  hundred.1  In  the  shire 
court  the  reeve  and  four  men  appeared  for  each  township,  the 
twelve  senior  thegns  for  each  hundred.  The  shire  court  was, 
therefore,  not  only  a  popular  but  a  representative  assembly, 

—  a  county  parliament  in  which  each  township  and  hundred 
appeared  in  the  person  of  its  representatives.    As  all  other 
methods  of  trial  except  trial  by  jury  gradually  fell  into  disuse, 
and  as  the  king's  courts  held  in  the  shires  were  gradually 
relieved  of  all  fiscal  and  administrative  work,  the  county  par- 
liaments, which  were  originally  convened  to  meet  the  itinerant 
justices,  were  slowly  transformed  into  the  modern  courts  of  Modem  courts 
assizes,  in  which  the  itinerant  justices  still  preside,  but  in  which  °  asslze' 
the  general  assembly  of  the  shire  is  represented  only  by  the 

grand  and  petty  jurors  summoned  by  the  sheriff  for  the  dis- 
patch of  the  civil  and  criminal  business  to  be  disposed  of.2 
Such  is  the  historical  origin  of  the  Old-English  system  of  local 
self-government  as  embodied  in  the  township,  the  hundred,  and 
the  shire,  a  system  which  is  to-day  the  political  substructure  of  Political  sub- 
every  state  in  the  American  Union.   In  the  words  of  Tocque-  th™  American' 
ville:  "  In  America  ...  it  may  be  said  that  the  township  was  state. 
organized  before  the  county,  the  county  before  the  state,  the 
state  before  the  Union."  3    It  maybe  stated  as  a  general  rule 
that  the  English  colony  in  America,  like  the  English  state  in 
Britain,  represented  an  aggregation  of  counties,  and  that  each 
county  represented  an  aggregation  of  townships.  The  hundred 

—  the  intermediate  division  between  the  township  and  the 
county  —  appeared  in  the  structure  of  some  of  the  colonies, 
but  being  unnecessary  to  the  local  wants  of  the  new  land,  it 
passed  out  of  view.  The  hundred  existed  in  Virginia  and  Mary- 
land, and  maybe  elsewhere.4 

1  This  fact,  "left  questionable  in  dicature  and  the  Origin  of  Juries." 

the  laws,   is  proved  by  the  later  *  Democracy  in  America,  i,  49. 

practice."    Stubbs,    Const.  Hist.,  i,  4  As  to  its  history  in  Virginia,  see 

115.  See  also  Bigelow,  History  of  "Local  Institutions    of    Virginia," 

Procedure,  133.  Ingle,   Johns   Hopkins  Studies,   3d 

8  Upon  that  difficult  subject,  see  series,  ii-iii,  41.    "A  Tything-man 

Taylor,   The  Origin  and  Growth  of  in  each  manor,  a  constable  in  each 

the    English     Constitution,    i,    314,  Hundred."  Bacon,  Laws  of  Mary- 

"Development  of  the  Itinerant  Ju-  land,  1638. 


62 


THE  AMERICAN  CONSTITUTION 


[CE. 


Old-English 
central  organ- 
ization. 


Elective 

kingship. 


Thus  it  appears  that  after  the  work  of  consolidation  was 
completed,  the  substructure  of  the  Old-English  Commonwealth 
consisted  of  the  shire  system,  each  shire  representing  an  aggre- 
gation of  hundreds,  and  each  hundred  an  aggregation  of  town- 
ships. Upon  that  solid  foundation,  which  has  never  been 
undermined,  rested  a  weak  and  loosely  organized  system  of  cen- 
tral government  represented  by  the  king  and  the  witenagemot. 
It  is  generally  admitted  that  the  Teutonic  tribes  that  invaded 
Britain  were  non-monarchical.  As  conquest  advanced,  and  as 
definite  districts  of  country  were  permanently  settled,  and 
as  the  various  groups  felt  the  need  of  drawing  together  under 
a  permanent  leadership,  the  ealdorman  or  heretoga,  war-leader, 
was  advanced  to  the  dignity  of  a  king  who  could  represent  in 
his  person  the  unity  of  a  new  national  life.1  The  name  of  the 
son  was  associated  with  that  of  the  father  as  a  recognition  of 
the  hereditary  principle ;  and  in  order  to  impart  dignity  to  the 
person  of  the  new  king,  fable  at  once  traced  his  descent  in  an 
unbroken  line  from  Woden.  But  the  recognition  of  the  heredit- 
ary principle  was  attended  and  modified  by  the  older  principle 
of  election.  The  right  to  the  throne  might  be  vested  by  the 
original  choice  in  a  single  royal  house,  but  the  question  as  to 
which  member  of  that  house  should  receive  the  succession  when 
a  vacancy  occurred  was  one  which  the  witan  alone  could  deter- 
mine. No  matter  who  succeeded  to  the  throne,  the  theory  was 
that  he  succeeded  by  virtue  of  an  election;  he  was  " gecoren  and 
dhafen  t6  cyninge,"  — elected  and  raised  to  be  king.2  The  witan, 
which  possessed  the  power  to  elect  the  king,  possessed  also  the 
correlative  right  to  depose  him  whenever  his  government  was 
not  conducted  for  the  good  of  his  people.3  As  the  process  of 
aggregation  advanced,  the  institution  of  kingship  grew  with 
each  extension  of  territory.  As  an  heptarchic  king  rose  in 
power  and  importance  above  the  petty  royal  head  of  a  prim- 
itive state,  so  did  the  king  of  all  the  English  rise  in  power  and 
importance  above  an  heptarchic  king.  Thus  overshadowed, 


1  "The  word  rice  I  take  to  mark 
the  change  from  ealdormanship  to 
kingship."  Freeman,  Norm.  Conq., 
i,  392,  Appendix  K. 

*  "The  possession  of  Woden's 
blood  was  the  indispensable  condi- 
tion of  kingship."  Kemble,  Saxons 


in  England,  i,  329;  ii,  215,  219. 

1  As  to  the  formal  and  regular 
deposition  of  Alchred  of  Northum- 
bria,  see  E.  Chron.,  a.  755;  Flor., 
Wig.,  a.  755- 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  63 

provincial  royalty  finally  died  out,  after  lingering  in  North-  Provincial 
umbria  until  the  death  of  the  last  Danish  king  in  954.  A  few 
years  after  that  event,  Eadgar  succeeded  to  the  threefold 
sovereignty  of  the  West  Saxons,  Mercians,  and  Northumbrians, 
and  thus  became  the  first  sole  and  immediate  king  of  all  the 
English.1  Every  royal  house  to  which  conquest  had  given 
birth  was  now  extinct  except  the  West  Saxon  House  of  Cerdic, 
—  as  the  fittest  it  survived. 

In  the  early  kingdoms  in  which  the  Teutonic  settlers  origin-  Constitution 
ally  grouped  themselves  in  Britain,  the  state  assembly  appears 
as  the  folk-moot,  the  meeting  of  the  whole  people  in  arms;  in 
the  larger  aggregates  known  as  heptarchic  kingdoms  the  na- 
tional assemblies  are  not  folk-moots  at  all,  but  witenagemots; 
they  are  not  great  popular  assemblies  of  an  entire  nation,  but 
small  aristocratic  assemblies  composed  only  of  the  great  and 
wise  men  of  the  land.  In  the  absence  of  the  principle  of  repre- 
sentation in  the  higher  sphere  of  politics,  it  is  easy  to  under- 
stand how  an  originally  democratic  assembly,  into  which  the 
magnates  of  the  land  entered  as  dominating  factors,  would 
naturally  shrink  up  into  a  narrow  aristocratic  body  composed 
of  the  magnates  only,  wherever  the  extent  of  the  territory  to  be 
traversed  rendered  it  difficult  for  the  mass  of  the  people  to 
attend.  The  results  of  that  principle  are  practically  the  same, 
whether  worked  out  in  England  or  Achaia.2  As  the  process  of  England 
aggregation  was  attended  by  an  increase  in  the  power  of  the  and  Acnaia- 
king  and  thegnhood,  and  by  a  consequent  depression  of  the  pop- 
ular power,  without  the  formal  exclusion  of  any  class,  the 
mass  of  the  people  simply  ceased  to  attend  assemblies  in  whose 
deliberations  they  could  take  but  a  subordinate  part.  Thus, 
through  a  perfectly  natural  process,  the  folk-moot,  the  meeting 
of  the  people,  was  converted  into  a  witenagemot,  a  meeting  of 
the  wise,  in  which  were  considered  all  matters  involving  the 
general  good.  Such  is  the  history  of  the  witenagemot,  whether 
considered  as  a  supreme  council  of  an  heptarchic  state,  or  as 
the  supreme  council  of  the  whole  English  nation  when  finally 
united  in  a  single  consolidated  kingdom.  The  weakness  of  the 
Old-English  Commonwealth  was  in  its  superstructure.  The 

1  "It  was  not  till  Eadgar's  day  tory  of  the  English  People,  1,96. 
that  the  name  of  Britain  passed  into          2  Cf.  Freeman,  Comparative  Poli- 

the  name  of  Engla-land,  the  land  of  tics,  v,  "The  Assembly." 
Englishmen,  England."  Green,  His- 


64 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Lack  of  cohe- 
sion between 
central  and 
local  powers. 


Feudal  tend- 
ency to  dis- 
ruption 
checked  by 
Godwine. 


Norman  duchy 
and  its  dukes. 


national  unity  that  grew  up  through  a  premature  and  imperfect 
concentration  of  powers  around  a  single  throne  was  constantly 
strained  and  weakened  by  the  counter-force  of  the  feudal  and 
provincial  spirit.  The  greatest  defect  in  the  political  system  as 
a  whole  arose  out  of  the  looseness  of  the  tie  that  bound  the  cen- 
tral powers  of  the  state  to  the  local  machinery  of  the  Constitu- 
tion. There  was  a  want  of  a  strong  organic  connection  between 
the  King  and  the  Witan,  as  the  representatives  of  the  nation, 
and  the  system  of  provincial  organization  embodied  in  the 
shires,  —  a  want  never  to  be  supplied  until  representatives 
from  the  local  communities  finally  drew  together  in  an  assem- 
bly which  became  coordinate  with  the  King's  Council.  The 
political  history  of  the  century  that  intervenes  between 
Eadgar  the  Peaceful  and  William  the  Conqueror  (958-1066)  is 
the  history  of  the  struggle  between  the  power  of  the  nation  as 
embodied  in  the  Crown  and  the  provincial  power  asserted  by 
the  great  ealdormen,  who  were  ever  striving  in  the  direction  of 
feudal  isolation.  In  that  struggle  the  defensive  power  of  the 
nation  was  broken ;  the  spirit  of  disunion  and  disorder  that  was 
ever  assailing  the  foundations  of  the  throne  was  equally  ready 
to  paralyze  the  national  arm  in  the  presence  of  the  invader. 
The  feudal  tendency  to  disruption  does  not  prevail  simply 
because  the  great  Earl  Godwine,  who  is  striving  to  win  the 
crown  for  his  own  house,  is  strong  enough  to  counteract  it. 
Upon  his  death  (1053)  the  earldom  of  the  West  Saxons  passed 
to  his  son  Harold,  who  for  twelve  years  stood  forth  as  the  real 
master  of  the  realm.  But  when,  upon  the  death  of  the  child- 
less Eadward,  Harold  was  elected  by  the  Witan  to  the  vacant 
throne,  it  was  impossible  even  for  him  to  bind  together  the 
broken  power  of  the  kingdom,  with  the  great  earldoms  of 
Merciaand  Northumbria  in  the  hands  of  his  two  jealous  rivals, 
Eadwine  and  Morkere,  whose  treacherous  policy  really 
opened  the  way  to  the  Norman  Conquest.  "When  Harold, 
imitating  the  Capetians,  raised  himself  to  the  throne,  the 
natural  consequence  would  seem  to  have  been  that  England 
should  share  the  fate  of  France.  To  have  prevented  this  is 
the  one  great  service  which  William  rendered  to  mankind."  l 
The  history  of  the  Norman  duchy  begins  with  the  planting 
in  911  of  the  Danish  colony  at  Rouen  by  Rolf  or  Rollo,  who  in 
1  North  American  Review  for  July,  1874, 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  65 

the  next  year  received  from  Charles  the  Simple  the  grant  of  the 
district  on  both  sides  of  the  Seine  which  he  had  already  won 
by  the  sword.  If  any  records  ever  existed  touching  the  details 
of  the  settlement  or  touching  the  legal  and  political  institutions 
planted  by  its  founders  in  Gaul,  they  have  utterly  perished. 
There  are  no  chronicles,  no  charters  to  guide  us ;  of  the  internal 
organization  of  the  Norman  duchy  in  the  early  days  of  its 
history  we  know  absolutely  nothing.  It  seems,  however,  to  be 
clear  that  the  Norman  dukes  from  the  very  beginning  ruled 
not  as  absolute  sovereigns,  but  with  the  advice  of  some  kind  of 
an  assembly  or  council  of  great  men.1  As  the  time  for  the  con- 
quest of  England  approaches,  the  Duke  consults  or  professes 
to  consult,  the  magnates  of  his  realm,  lay  and  spiritual,  the 
optimates,  the  proceres  of  Normandy.  The  court  he  holds  may 
not  yet  be  called  a  court  of  his  tenants-in-chief,  but  it  is  an 
assembly  of  magnates  who  are  his  vassals.  It  also  appears  that  An  assembly 
in  the  lower  courts  the  lord  of  the  court  is  not  the  only  judge ;  he  of  masnates. 
is  surrounded  by  doomsmen.2  It  is  in  the  reign  of  the  third 
duke,  Richard  the  Fearless,  that  we  can  trace  the  beginnings  of 
the  Norman  nobility,  whose  members  derive  their  status  as 
nobles  either  from  ancient  Norse  descent  from  the  companions 
of  Rolf  or  through  connections,  legitimate  or  illegitimate,  with 
the  ducal  house.  The  baronage  which  thus  grew  up  held  their 
lands  of  the  Duke  upon  terms  of  feudal  obligation,  and  by  his 
strong  hand  alone  were  they  held  in  subjection.3  Over  this 
turbulent  baronage,  William  the  Bastard,  while  yet  a  minor, 
was  called  to  rule;  and  his  first  important  victory  was  won  in 
crushing  a  widespread  revolt  headed  by  some  of  the  greatest 
nobles  of  his  own  dukedom.  After  such  an  experience  at  home, 
William  was  able  to  triumph  over  Harold  because  the  realm 
of  England  was  torn  by  a  feudal  tendency  to  disruption  which 

1  Extreme  views  on  this  subject  sides,  but  three  abbots,  nine  named 
are  marked  at  one  end  by  Palgrave  laymen,  and  many  others  are  the 
(Normandy  and  England,  ii,  258  sg.)  judices  hujus  placiti.   Neustria  Pia, 
and  at  the  other  by  Steenstrup  (In-  311. 

ledning  i  Normannertiden.    Copen-          *  Richard    the    Fearless    is    re- 

hagen,  1876).    There  is  a  French  garded  as  the  founder  of  Norman 

translation  of  the  latter  in  the  Bui-  feudalism.  Normandy  and  England, 

letin  de  la  Societi  des  antiquaires  de  ii,  534.  See  also  Waitz,  Gottingische 

Normandie,  x,  185.  Gelehrte  Anzeigen,  Nachrichten,  Feb- 

2  In  a  suit  heard  in  1086,  in  the  ruary  14,  1866,  95,  96. 
court  of  Robert  of  Bellgme,  he  pre- 


66 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Fall  of  Harold 
and  triumph 
of  William. 


William 
a  national 
king  as  well 
as  feudal 
conqueror. 


Law  of 
the  land 
and  ancient 
assemblies 
preserved. 


gave  him  the  victory  at  Hastings:  the  "main  forces  of  North- 
umberland and  North  Western  Mercia  came  not  to  King 
Harold's  Muster."  With  the  fall  of  Harold  and  the  triumph  of 
William,  the  royal  power  passed  into  the  hands  of  one  of  the 
wisest  and  sternest  of  statesmen.  By  his  inflexible  policy  the 
tendency  to  disruption  was  checked,  the  four  great  earldoms 
were  abolished,  and  a  real  national  unity  at  last  grew  up  as  the 
old  provincial  jealousies  were  gradually  crushed  out  beneath 
the  yoke  of  the  foreign  kings.  Under  the  heel  of  the  stranger 
the  English  nation  finally  awoke  to  a  sense  of  its  oneness. 

Nothing  could  have  been  more  consummate  than  the  policy 
through  which  William  checked  feudal  disintegration  in  Eng- 
land by  establishing  a  strong  central  government  of  which  he 
was  the  directing  force.  His  first  move  was  to  make  himself 
a  national  king,  the  lawful  successor  of  Eadward  through  an 
election  by  the  Witan.1  By  claiming  to  be  the  heir  of  Eadward, 
he  connected  himself  directly  with  the  line  of  national  kings 
that  had  gone  before  him ;  by  insisting  upon  his  elevation  to  the 
royal  office  by  the  choice  of  the  Witan,  he  obtained  the  highest 
confirmation  of  his  title  that  could  be  drawn  from  the  ancient 
Constitution.  By  means  of  these  outward  forms  William  pro- 
claimed the  fact,  not  only  to  the  conquered  English  but  to  his 
Norman  followers,  that  he  would  rule  in  his  new  realm,  not  as 
a  mere  feudal  conqueror,  but  as  a  national  king.  The  sum  of 
royal  power  that  thus  accrued  to  William  by  virtue  of  the 
ancient  Constitution  was  augmented  by  the  addition  of  every 
feudal  right  that  tended  to  increase  the  royal  revenue  and  to 
strengthen  the  royal  authority,  while  every  principle  was 
eliminated  that  tended  to  promote  the  disruptive  tendencies 
of  feudal  institutions.  As  King  of  the  English,  William  was  care- 
ful to  preserve  the  law  of  the  land  as  it  stood  in  the  days  of 
King  Eadward,  and  along  with  it  those  ancient  assemblies  of 
the  shire  and  the  hundred  in  which  it  had  been  immemorially 
administered.2  As  feudal  lord  he  firmly  established  the  doc- 


1  In  the  church  of  Eadward,  on 
Christmas  Day,  amid  the  shouts  of 
"Yea,  yea,"  from  his  new  English 
subjects,  William,  after  taking  the 
oaths  usually  administered  to  an 
English  king,  was  crowned  and 
anointed  by  the  hands  of  the 


Northumbrian  prelate,  who,  less 
than  a  year  before,  had  poured  the 
consecrating  oil  upon  the  head  of  the 
mighty  chief  of  the  House  of  God- 
wine.  Cf .  Green,  Hist,  of  the  English 
People,  i,  115. 

8  "  Requiratur  hundredus  et  com- 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  67 

trine  that  the  King  was  the  supreme  landlord,  and  that  all 
lands  were  held  by  grant  from  him.  In  his  time  the  folkland 
became  terra  regis.  All  landholders  thus  became  tenants  of  the 
King,  and  under  William's  successors  the  feudal  revenue  of  the 
Crown  from  that  source  was  enormous.  It  was  William's  pol- 
icy to  introduce  but  one  side  of  feudalism,  —  to  accept  it  as  a  Feudalism 
system  of  tenure,  but  not  as  a  system  of  government.  He  was 


therefore  careful  to  prevent  the  accumulation  in  the  hands  of 
the  great  feudatories  of  any  considerable  number  of  contigu- 
ous estates;  he  was  also  careful  to  require  from  all  freeholders 
an  oath  that  bound  them  to  the  King  by  the  double  tie  of 
homage  and  allegiance.  To  every  landowner  the  Conqueror 
stood  in  the  double  relation  of  landlord  and  sovereign. 

When  the  crown  passed  to  William  the  Red,  the  strength  of  William 
his  father's  work  was  put  to  the  test  by  a  great  revolt  of  the  the  Red< 
chief  men  of  Norman  blood  throughout  England.    The  new 
king,  thus  deserted  by  the  bulk  of  the  greater  nobles,  at  once 
fell  back  upon  the  loyalty  of  his  English  subjects,  with  whose 
aid  the  revolt  was  crushed  and  the  power  of  the  baronage 
trampled  under  foot.  The  royal  authority,  thus  left  unchecked 
by  the  counter  force  of  the  feudal  power,  became  in  the  hands  of 
the  new  minister,  Ranulf  Flambard,  an  irresponsible  despotism.  Flambard  and 
The  system  of  feudal  law  he  is  said  to  have  worked  into  a  de-  the  growth  of 

feudal  law. 

finite  form  was  applied  to  all  feudatories,  temporal  and  spiritual. 
By  his  policy  the  local  courts  of  the  shire  and  the  hundred 
were  turned  into  engines  of  extortion;  in  the  words  of  the 
Chronicle,  "He  drove  and  commanded  all  his  gemots  over  all 
England."  l  When  William  the  Red  died,  the  Witan,  who  were 
then  near  at  hand,  chose  his  brother  Henry  as  king.2  The 
promises  contained  in  Henry's  coronation  oath,  whose  exact  Henry's 
words  are  still  preserved,  were  amplified  into  a  comprehensive  coj£nation 
charter  of  liberties,  which  stands  not  only  as  the  immediate 
parent  of  the  Great  Charter  of  John,  but  as  the  first  limitation 
imposed  upon  the  despotism  established  by  the  Conqueror  and 
carried  to  such  a  height  by  his  sons.3  Upon  the  ruins  of  the 

itatus,    sicut     antecessores     nostri  *  By   Henry's   charter  were   re- 

statuerunt."  Statutes  of  William,  §  8.  stored  to  the  people  the  laws  of 

1  Chron.  Petrib.,  1099.  King  Eadward,   which  symbolized 

1  Chron.  Petrib.,  noo.  As  to  the  the  ancient  Constitution,  with  such 

election,   see  William  of   Malmes-  amendments  as  the  Conqueror  had 

bury,  G.  R.t  v,  §  393.  made.  "Legem  Edwardi  regis  vobis 


68 


THE  AMERICAN  CONSTITUTION 


[Cn. 


The  Magnum 
Concilium. 


The  Curia. 


greater  feudatories,  Henry  raised  up  a  set  of  lesser  nobles,  from 
whose  ranks  he  selected  the  sheriffs  and  judges  who  were  to 
aid  him  in  the  work  of  administrative  reform.  At  the  begin- 
ning of  the  Conqueror's  reign  those  who  composed  the  Old- 
English  national  assembly  known  as  the  Witan  were  a  body  of 
Englishmen ;  by  the  end  of  his  reign  that  body  had  gradually 
changed  into  an  assembly  of  Normans  known  as  the  Magnum 
Concilium,  in  which  an  Englishman  here  and  there  held  his 
place.1  As  the  King's  thegns  became  his  tenants-in-chief,  the 
ancient  assembly  of  wise  men  gradually  became  the  King's 
court  of  feudal  vassals,  whose  right  to  exercise  power  was  made 
to  depend  practically  upon  the  King's  pleasure.2  The  inner  circle 
of  the  Magnum  Concilium  came  to  be  known  as  the  Curia  Regis, 
which,  during  the  Norman  reigns,  drew  to  itself  the  entire  cen- 
tral administration  of  justice  and  finance.  During  the  reign  of 
Henry,  Bishop  Roger  of  Salisbury  became  Justiciar,  and  as  such 
he  reorganized  the  new  fiscal  and  judicial  system  embodied  in 
the  Curia.  From  the  reign  of  Henry  I,  the  Curia,  whose  method- 
ical procedure  imposed  upon  the  despotic  powers  of  the  Crown 
the  restraints  at  least  of  administrative  routine,  can  be  distinctly 
traced  as  a  supreme  court  of  justice  containing  specially  ap- 
The  Justiciar.  pointed  judges,  and  presided  over  by  the  King  or  Justiciar,  who 
is  occasionally  distinguished  by  the  title  of  "summus"  or  " capi- 
talist Under  the  guidance  of  Bishop  Roger,  the  whole  judicial 
and  financial  organization  of  the  kingdom,  both  central  and 
local,  was  reorganized  and  remodeled. 

After  the  accession  of  Stephen,  England,  for  the  first  and 
last  time  in  her  history,  sank  into  a  state  of  feudal  anarchy 
which  the  Conqueror  by  his  far-sighted  policy  had  striven  to 
prevent.  But  the  relapse  was  only  momentary;  the  system 
of  central  government  the  Conqueror  had  devised  emerged 
intact  upon  the  making  in  1153  of  the  Treaty  of  Wallingford, 
in  which  Stephen  recognized  as  his  heir  Henry,  the  son  of 
Matilda  (daughter  of  Henry  I),  who  had  married  Geoffry,  called 
Plantagenet,  son  of  Count  Fulk  of  Anjou.  The  treaty  was 
attended  by  an  elaborate  project  of  reform,  which  contem- 

reddo    eum    illis    emendationibus          *  A  memorable  part  of  his  policy 

quibus  pater  meus  earn  emendavit  consists  of  his  order  for  the  holding 

consilio  baronum  suorum."  Art.  13.  of  the  courts  of  the  shire  and  hun- 

1  Freeman,  Norm.  Conq.,  v,  277;  dred.  For  the  text  see  Fcedera,  4, 12; 

Select  Charters,  17.  Select  Charters,  104. 


Stephen 
and  anarchy. 


A  project 
of  reform. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  69 

plated  among  other  things  the  resumption  of  all  royal  rights 
that  had  been  usurped  by  the  baronage,  the  restoration  of 
estates  taken  from  their  lawful  owners,  the  razing  of  all  un- 
licensed castles,  the  banishment  of  the  foreign  mercenaries 
from  the  country,  and  the  appointment  of  sheriffs  to  reestablish 
justice  and  order.1  Thus  ended  the  reign  of  the  fourth  and  last 
Norman  king.  During  those  four  reigns  England  was  given 
a  new  system  of  central  government  whose  extraordinary 
powers  were  vested  in  the  Magnum  Concilium,  and  whose 
ordinary  powers  were  vested  in  its  inner  circle  known  as  the 
Curia  Regis,  which  has  given  birth  not  only  to  every  court  of 
law  or  equity  in  which  justice  is  administered  in  the  King's 
name,  but  also  to  the  entire  administrative  machinery  of  the  Origin  of 
Constitution.  The  new  system  of  central  government  thus 
built  up  as  a  superstructure  by  the  four  Norman  kings  rested 
upon  a  substructure  they  did  practically  nothing  to  disturb,  — 
a  substructure  represented  by  the  ancient  Teutonic  system  of 
local  self-governing  communities  known  as  the  township,  the 
hundred,  and  the  shire.  For  a  time  the  superstructure  and  the 
substructure  had  no  organic  connection  with  each  other.  Not 
until  the  Angevin  period  is  reached,  not  until  the  reign  of 
Henry  II  and  his  sons,  is  there  anything  like  a  growing- together  The  period 
of  the  Norman  system  of  central  administration  and  the  ten-  of  fuslon- 
acious  machinery  of  Old-English  local  freedom  embodied  in 
the  organizations  of  the  township,  the  hundred,  and  the  shire. 
And  the  same  agencies  which,  during  the  Angevin  reigns, 
brought  about  the  amalgamation  of  the  new  central  adminis- 
trative system  and  the  ancient  local  machinery,  also  brought 
about  a  union  between  the  new  system  of  royal  law,  radiating  Royal  and 
from  the  Curia  Regis,  and  the  ancient  system  of  customary  or 
popular  law  as  administered  in  the  local  courts.2  The  accession 
of  Henry  of  Anjou  marks  the  beginning  of  the  period  of  fusion 

1  For  the  treaty  itself  see  Ste-  clearly  pointed  out  the  fact  that  in 
phen's  Charter,  printed   in  Rymer,  the  study  of  Teutonic  law,  the  dis- 
i,  1 8.   The  entire  scheme  of  reform  tinction  must  be  sharply  drawn  be- 
which  attended  it  can  only  be  gath-  tween  such  law  as  flows  from  a  royal 
ered  from  the  contemporary  histori-  or  official  source,  and  such  as  flows 
ans.   See  R.  de  Monte,  1153;  Hen.  from  a  customary  or  popular  source. 
Hunt,  fol.  228;  Gervase,  1375;  Will.  As  to Sohm's  views  on  that  subject, 
Newberg,  i,  30;  Roger  of  Hoveden,  see  North  American  Review  for  July, 

»>  212.  1874,  p.  222. 

2  A    great    German    jurist    has 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Henry  II 
and  the  reign 
of  law. 


Constitutions 
of  Clarendon, 
1164. 


Practice 
of  summons. 


Growth 
of  judicial 


between  the  Norman  superstructure  and  the  Old-English 
substructure  whose  final  outcome  was  the  modern  Constitution 
endowed  with  the  strongest  elements  of  both.  In  that  process 
of  fusion  was  created  the  system  of  law  and  equity  that  now 
prevails  in  England,  in  every  state  of  the  American  Union,  and 
in  the  federal  courts  of  the  United  States. 

The  death  of  Stephen  opened  the  way  for  Henry  II,  "whose 
statesmanlike  activity,  whose  power  of  combining  and  adapt- 
ing that  which  was  useful  in  the  old  systems  of  government 
with  that  which  was  desirable  and  necessary  under  the  new, 
gives  to  the  policy  which  he  initiated  in  England  almost  the 
character  of  a  new  creation."  l  The  full  scope  of  his  policy  was 
not  only  to  establish  the  reign  of  law,  but  to  reduce  all  orders 
of  men  to  a  state  of  equality  before  the  same  system  of  law. 
That  effort  brought  him  into  sharp  conflict  with  the  clerical 
order  headed  by  Becket,  the  outcome  of  which  was  embodied  in 
the  Constitutions  of  Clarendon,2  a  concordat  that  regulated 
from  that  time  the  relations  of  the  church  with  the  state.  In 
reorganizing  the  central  system,  Henry  gave  definite  form  to 
the  Great  Council,  now  summoned  at  regular  intervals  as  a  per- 
fect feudal  court,  —  an  assembly  of  archbishops,  bishops, 
abbots,  priors,  earls,  barons,  knights,  and  freeholders.3  The 
writs  of  summons  were  of  two  kinds:  first,  such  as  were  spe- 
cially addressed  to  those  great  personages  whose  presence  was 
necessary,  and  who  were  summoned  as  a  matter  of  course; 
second,  such  as  were  addressed  generally  to  the  sheriff  of  each 
shire  requiring  him  to  summon  in  a  body  the  lesser  landowners. 
In  reorganizing  the  Curia  Regis,  its  financial  aspect  was  over- 
shadowed by  its  development  as  a  judicial  tribunal.  The 
growth  of  the  judicial  business  of  the  Curia  was  so  great  that 
in  1176  its  staff  had  increased  to  eighteen  justices,  who  were 
apportioned  to  the  six  circuits  into  which  the  kingdom  was 
divided.  In  1179  a  new  arrangement  was  made,  and  out  of  a 
larger  staff,  charged  with  exchequer  business  and  the  work  of 
the  circuits,  six  justices  were  selected,  and  "these  six  are  the 
justices  constituted  in  the  Curia  Regis  to  hear  the  complaints  of 
the  people."  4  This  limited  tribunal,  which  from  the  year  1179 


1  Stubbs,  Const.  Hist.,  i,  336. 

8  See  R.  Diceto,  c.  336;  Gervase, 
c.  1385;  Bigelow,  Hist,  of  Procedure, 
52,  53- 


1  Select  Charters,  22,  23. 

4  "Isti  sex  sunt  justitise  in  curia 
regis  constituti  ad  audiendum  cla- 
mores  populi."  Benedictus,  i,  239.^ 


III.]    EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  71 

held  regular  sessions  "in  banco,"  l  probably  represents  the 
beginning  of  the  King's  Bench  as  a  distinct  tribunal.  By  the  Beginning  of 
Assize  of  Clarendon,  1 166,  called  the  most  important  document  mg  s 
of  the  nature  of  law  or  edict  that  has  appeared  since  the  Con- 
quest,2 whose  enforcement  was  committed  to  the  justices 
itinerant,  the  system  for  the  presentation  of  criminals  by  grand 
juries  was  remodeled,  and  every  franchise  opened  to  the  visits  Grand  and 
of  the  sheriffs  and  justices.3  The  trial  jury,  a  subject  with  an  tnal  Junes> 
intricate  history,  is  the  product  of  the  union  of  Old-English  and 
Norman  elements,  the  former  supplying  the  germ  in  the  form 
of  community  witnesses,  the  latter  supplying  the  royal  writ 
process  through  which  that  germ  was  finally  developed  into  the 
trial  jury  of  modern  times.  The  growth  of  that  institution  was 
greatly  advanced  by  Henry  II,  who  introduced  into  England, 
under  the  name  of  assizes,  a  new  species  of  the  inquest  of  proof 
known  as  the  recognition.  To  the  student  of  English  law,  the 
Great  Assize,  and  the  assizes  of  novel  disseisin,  mort  d'ancester, 
and  darrien  presentment,  the  leading  recognitions  in  civil  mat- 
ters, are  the  most  familiar.  In  England  only  was  the  jury  of 
proof  transformed  into  the  jury  of  judgment.  There  trial  by 
jury  gradually  superseded  all  other  methods  of  trial;  as  the  fit- 
test it  survived.4  The  Angevin  rulers  as  national  kings  retained 
the  right  to  summon,  under  the  lead  of  the  sheriffs,  the  ancient 
forces  of  the  shire;  as  feudal  lords  they  gained  the  right  through 
the  growth  of  tenures  to  call  upon  the  feudal  army  to  perform 
the  military  service  due  from  their  lands.  By  his  Assize  of 
Arms,  1181,  Henry  undertook  to  reorganize  and  renew  the  Assize  of 
ancient  force  as  a  body  safer  and  more  trustworthy  for  national  rms* f 
defense  than  the  feudal  host.6  As  the  fruits  of  feudal  tenures 
were  an  addition  or  supplement  to  the  older  revenues  derived 
from  the  ancient  system,  so  the  feudal  army  was  an  addition  or 
supplement  to  the  older  constitutional  force  of  the  land.  In 
order  to  raise  money  with  which  to  hire  mercenaries  to  be 
employed  in  the  meditated  expedition  against  Toulouse,6 

1  As  to  the  "Justiciarii  sedentes          4  Upon   the   whole   subject,    see 
in  banco,"  see  Glanvill,  lib.  2,  c.  6,      Taylor,  The  Origin  and  Growth  of  the 
lib.  8,  c.  i,  and  lib.  n,  c.  i;  Bene-      Eng.  Const.,  i,  314-334. 

dictus,  ii,  preface,  Ixxv,  Rolls  Series.          5  Benedictus,  i,  §  278;  Select  Char- 

2  Select  Charters,  p.  143.  ters,  p.  153. 

1  Sir  J.  F.  Stephen,  History  of  the  *"Tolosam  bello  aggressurus" 
Criminal  Law  of  England,  i,  68;  Pal-  etc.,  John  of  Salisb.  (Ep.  145),  i,  223. 
grave,  Commonwealth,  i,  213. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Taxation  of 
personal  pro- 
perty, 1188. 


Henry  dealt  a  serious  blow  to  the  feudal  power  by  establishing 
Scutage,  1159.  in  1 159  the  institution  of  scutage  or  shield-money,  a  pecuniary 
commutation  for  personal  service  in  the  host.  Up  to  this 
point  in  Henry's  reign,  —  leaving  out  of  view  the  receipts  from 
the  customs,  —  all  taxation  fell  upon  the  land,  and  consisted 
(i)  of  the  ancient  customary  dues,  and  the  tax  on  the  hide, 
survivals  of  the  Old-English  system ;  and  (2)  of  the  feudal  inci- 
dents, and  the  scutage,  or  tax  on  the  knight's  fee,  —  products  of 
the  new  system  of  military  tenures.  When  the  Angevin  finan- 
ciers were  tempted  by  the  mass  of  personal  property  brought 
into  existence  by  the  prosperity  consequent  upon  the  new 
policy  of  order  and  reform,  Henry,  in  1188,  levied  a  tithe  of 
movables  to  aid  the  common  host  of  Christendom  in  retaking 
the  Holy  City  from  Saladin.  This  taxation,  for  the  first  time, 
of  personal  property  was  a  momentous  step,  because,  whenever 
any  one  was  suspected  of  contributing  less  than  his  share,  four 
or  six  lawful  men  of  the  parish  were  chosen  to  declare  on  oath 
what  he  should  give.1  In  that  way  the  representative  principle 
—  which  first  appears  in  the  form  of  the  reeve  and  four  select 
men  who  represent  the  township  in  the  courts  of  the  shire  and 
hundred — is  brought  into  close  contact  with  the  system  of 
taxation.  In  connection  with  that  system  the  representative 
principle  ascends,  through  three  stages,  from  the  lowest  to  the 
highest  functions  of  government.  It  is  first  applied  in  an  hum- 
ble way,  through  the  chosen  jurors,  to  the  assessment  of  the 
tax ;  it  next  becomes  involved  with  the  granting  of  the  tax ;  and 
finally  it  determines  the  method  of  its  expenditure.  The  princi- 
ple that  taxation  and  representation  are  correlative  terms  —  the 
vital  principle  involved  in  the  separation  of  the  colonies  from 
the  mother  country  —  dates  back  to  the  Saladin  tithe  of  1 188. 
The  system  of  taxation  thus  organized  by  a  great  statesman 
and  financier  was  so  wantonly  applied  after  his  death  by  a 
spendthrift  knight-errant  as  to  exhaust  its  resources.  From  a 
constitutional  standpoint  the  reign  of  Richard  I  is  chiefly  inter- 
esting in  so  far  as  it  illustrates  the  improvements  in  the  system 
of  taxation  suggested  by  its  constant  use,  and  the  oppressions 


Taxation  and 
representation 


Richard  I 
and  taxation. 


1  "Et  si  aliquis  juxta  conscien- 
tiam  illorum  minus  dederit  quam 
debuerit,  eligentur  de  parochia 
quatuor  vel  sex  viri  legitimi,  qui 


jurati  dicant  quantitatem  illam 
quam  ille  debuisset  dixisse;  et  tune 
oportebit  ilium  superaddere  quod 
minus  dedit."  Benedictus,  ii,  31. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  73 

that  arose  out  of  its  incessant  application  to  all  classes  and  con- 
ditions of  men.  In  1192  Richard  from  his  Austrian  dungeon 
demanded  for  his  ransom  £100,000,  double  the  revenue  of  his 
kingdom.1  In  1196  it  was  that  the  poorer  citizens  of  London 
broke  into  open  revolt  at  the  manner  in  which  the  tallage 
was  collected ; 2  and  two  years  later  a  fresh  demand  for  money 
from  the  baronage  led  to  a  revolt  in  a  higher  sphere  led  by  the 
patriot  Bishop  of  Lincoln,  Hugh  of  Avalon.3  The  nation  thus 
oppressed  by  the  grinding  weight  of  the  central  government 
built  up  by  the  Norman  and  Angevin  kings  was  now  organiz- 
ing itself  in  the  ranks  of  the  three  estates  known  as  the  Clergy,  Rise  of  the 
Baronage,  and  Commons.  The  causes  that  brought  about  the  three 
establishment  of  the  estate  system  were  general  in  their  opera- 
tion, and  in  each  one  of  the  European  countries  the  result  was 
reached  at  about  the  same  time.  The  complete  establishment  of 
the  system  is  generally  regarded  by  the  historians  as  the  work 
of  the  thirteenth  century.  In  the  history  of  the  English  nation 
the  three  estates  appear  as  the  Clergy,  the  Baronage,  and  the 
Commons.4  In  the  words  of  the  Lords'  Report,  "In  England 
.  .  .  the  Clergy  have  been  esteemed  one  estate,  the  Peers  of  the 
realm  the  second  estate,  and  the  Commons  of  the  realm,  repre- 
sented in  Parliament  by  persons  chosen  by  certain  electors, 
a  third  estate."  5  The  estate  system  itself  consisted  of  the 
division  of  the  nation  into  definite  classes  or  orders  of 
men;  the  product  of  the  system  was  that  type  of  a  national 
assembly  in  which  each  class  or  order  appeared  in  person  or 
by  representatives. 

The  death  of  the  childless  Richard  in  April,  1199,  opened  the  John  as  a 
way  for  his  brother  John,  "  the  worst  outcome  of  the  Angevins.  statesman- 
He  united  in  one  mass  of  wickedness  their  insolence,  their  self- 
ishness, their  unbridled  lust,  their  cruelty  and  tyranny,  their 
shamelessness,  their  superstition,  their  cynical  indifference  to 
honor  or  truth.  .  .  .  But  with  the  wickedness  of  his  race  he 

1  Hoveden,  iii,  208,  210,  217,  222.          4  And  not,  as  is  often  erroneously 
See  also   preface  to  Hoveden,   iv,  stated,  as  the  King,  Lords,  and  Com- 
Ixxxiii,  Rolls  Series.  mons.  An  argument  in  favor  of  that 

2  For  the  history  of  the  rising,  see  now  obsolete  theory  may  be  found 
Will.  Newb.,  v,  c.  20;  R.  Diceto,  c.  in  Whitelocke's  work  on  the  Parlia- 
691;  Hoveden,  iv,  5,  6,  and  preface,  mentary  Writ,  ii,  43. 

iv,  Ixxxix.  6  Vol.  i,  p.  1 18. 

8  See   preface    to    Hoveden,   iv, 
Ixxxi;  Freeman,  Norm.  Conq.,  v,  465. 


74 


Loss  of  Nor- 
mandy, 1204. 


THE  AMERICAN  CONSTITUTION 


[CH. 


Council  at 
St.  Alban's, 
August  4, 
1213. 


Council  at 
St.  Paul's, 
August  25, 
1213. 


Meeting  at 
St.  Edmund's, 
November, 
1214. 


inherited  its  profound  ability.  ...  In  the  rapidity  and 
breadth  of  his  political  combinations  he  far  surpassed  the 
statesmen  of  his  time."  1  Fate  did  much  to  cripple  such  a 
monster  by  depriving  him,  in  1204,  of  Normandy,  whereby  the 
last  direct  connection  of  the  baronage  of  England  with  the  land 
of  their  fathers  passed  forever  away.  That  severance  completed 
the  great  work  that  had  been  steadily  going  on  since  the  Con- 
quest, the  work  of  building  up  a  united  English  nation.  At  the 
head  and  front  of  the  united  nation,  which  thus  arose  out  of 
the  assimilation  of  the  smaller  mass  of  the  conquerors  by  the 
greater  mass  of  the  conquered,  the  baronage  —  Norman  in 
descent,  but  English  in  interest  and  feeling  —  held  its  place 
throughout  the  prolonged  struggle  in  which  the  Great  Charter 
was  won.  That  struggle  opened  in  the  summer  of  1213  with 
the  refusal  of  the  baronage  to  follow  John  to  France,  upon  the 
ground  that  he  was  still  excommunicated.  On  August  4,  a 
memorable  council  was  held  at  St.  Alban's,  to  which  were  sum- 
moned not  only  the  bishops  and  barons,  but  also  the  reeve  and 
four  legal  men  as  representatives  from  each  township  on  the 
royal  demesne.2  In  that  meeting  the  laws  of  Henry  I  —  the 
embodiment  of  the  laws  of  King  Eadward  as  amended  by 
King  William  —  were  brought  to  the  attention  of  the  assembly 
by  the  Justiciar,  Geoffrey  Fitz-Peter,  and  proclaimed  as  the 
bases  on  which  the  liberties  of  the  nation  were  to  be  reestab- 
lished.3 In  a  second  gathering  of  the  barons,  held  at  St.  Paul's 
in  London  on  the  25th  of  the  same  month,  Langton  produced 
and  read  the  charter  of  Henry  I,  which  was  warmly  accepted 
as  the  basis  of  national  action.  Finally  in  November,  1214,  the 
barons,  under  the  pretext  of  a  pilgrimage,  assembled  secretly 
at  the  abbey  of  St.  Edmund  for  the  purpose  of  casting  into 
final  form  the  schedule  of  liberties  they  had  resolved  to  force 
upon  the  King.  Early  in  January,  1215,  the  united  baronage 
met  in  arms,  and  on  the  24th  of  May  London  threw  open  her 


1  Green,  Hist,  of  the  Eng.  People, 
i,  229-230. 

8  "In  crastino  autem  misit  rex 
litteras  ad  omnes  vicecomites  regni 
Anglise  praecipiens  tit  de  singulis 
dominicorum  suorum  villis  quatuor 
legales  homines  cum  praeposito  apud 
Sanctum  Albanum  pridie  nonas  Au- 


gusti  facerent  convenire."  M.  Paris 
(ed.  Watts),  239. 

1  "Quatenus  leges  Henrici  avi 
sui  ab  omnibus  in  regno  custo- 
direntur  et  omnes  leges  iniquse 
penitus  enervarentur."  M.  Paris, 
ibid.  239. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE 


75 


gates  to  the  patriot  host,  and  Exeter  and  Lincoln  followed  her 

example.  In  order  to  save  himself  from  the  final  humiliation  of 

unconditional  surrender,  John  attempted  to  conceal  the  real 

nature  of  the  submission  about  to  be  made  under  the  cloak  of 

a  negotiation.  With  that  end  in  view  he  invited  the  barons  to  a 

conference  on  an  island  in  the  Thames  between  Windsor  and 

Staines,  near  the  meadow  of  Runnymede.   On  June  15  the  Great  Charter 

delegates  met  on  that  island  in  view  of  the  opposing  forces,  and 

after  going  through  the  form  of  a  negotiation,  agreed  upon  the 

Great  Charter  of  liberties  in  a  single  day.  Though  issued  in  the 

form  of  a  royal  grant,  it  was  in  substance  a  treaty  or  compact  l 

entered  into  between  the  royal  authority  on  the  one  hand  and 

the  nation  marshaled  in  the  ranks  of  the  three  estates  on  the 

other.    The  immortal  part  that  has  survived  is  embodied  in 

the  judicial  clauses  out  of  which  has  grown  what  English  and 

American  lawyers  call  "due  process  of  law."  The  39th  chapter  Chapter  39, 

provides:  Nullus  liber  homo  capiatur,  vel  imprisonetur,  aut 

disseisiatur,  aut  utlagetur,  aut  exuletur,  aut  aliquo  modo  de- 

struatur,  nee  super  eum  ibimus,  nee  super  eum  mittemus,  nisi 

per  legale  judicium  parium  suorum  vel  per  legem  terrae.    "No 

freeman  shall  be  taken,  or  imprisoned,  or  disseised,  or  out- 

lawed, or  exiled,  or  in  any  wise  destroyed  ;  nor  shall  we  go  upon 

him,  nor  send  upon  him,  but  by  the  lawful  judgement  of  his 

peers  or  by  the  law  of  the  land."  That  chapter  was  so  amended 

in  the  reissues  of  Henry  III  as  to  read,  "No  freeman  shall  be 

taken  or  imprisoned  or  disseised  of  his  freehold,  or  liberties,  or 

free  customs,  or  outlawed,  or  exiled,"  etc.    It  was  settled  long 

ago  that  the  guarantee  of  trial  by  jury  was  not  involved  in  the  Trial  by  jury 

phrase  "the  lawful  judgement  of  his  peers,"  and  that  "by  the  «*gu«mntee 

law  of  the  land  "  was  guaranteed  at  most  judgment  by  some  of 

the  contemporary  methods  of  trial,  such  as  ordeal,  battle,  or 

compurgation.2   And  yet  the  chapter  in  question  became  "a 


1  M.  Boutmy,  in  his  comments  on 
the  "Constitution  Anglais,"  has 
this  to  say:  "Les  pactes  sont  au 
nombre  de  trois:  la  grande  Charte 
(1215)  .  .  .  Le  charactere  de  cet 
acte  est  aise  a  definir.  Ce  n'est  pas 
precisement  un  traite,  puis  qu'il 
n'y  a  pas  ici  deux  souverainetes 
legitimes  ni  deux  nations  en  pre- 
sence;  ce  n'est  pas  non  plus  uneloi; 


elle  serait  en  tachee  d'irregularite  et 
de  violence;  c'est  tin  compromis  ou 
un  pacte."  Etudes  de  droit  constitu- 
tionnel,  pp.  39-41. 

a  The  whole  matter  is  well  put 
by  McKechnie,  Magna  Carta,  158 
sq.,  438  sq.  See  also  Hurtado  v.  Cali- 
fornia,  110  U.  S.  529.  "Theexpres- 
sion  'per  legem  terra'  simply  re- 
quired  judicial  proceedings,  accord- 


76 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Broad  con- 
struction. 


Chapter  39 
embodied  in 
state  constitu- 
tions. 


sacred  text,  the  nearest  approach  to  a  'fundamental  statute/ 
that  England  has  ever  had."  1  In  each  age  it  has  been  inter- 
preted as  a  living  guarantee  of  fundamental  rights  according 
to  the  needs  of  that  age.  In  that  way  it  was  given  a  broad 
construction  by  the  jurists  and  statesmen  of  the  seventeenth 
century  during  the  constitutional  struggles  with  the  Stuarts.2 
That  construction,  as  it  finally  became  fixed  in  the  Commen- 
taries of  Blackstone,  passed  at  the  end  of  the  Revolutionary 
War  into  the  original  constitutions  of  the  thirteen  states  as  a 
part  of  the  text  of  chapter  39,  reproduced  in  nearly  all  of  them. 
It  appears  in  the  following  forms  in  the  state  constitutions  of 
1776.  In  the  act  of  that  year,  continuing  the  charter  of  Con- 
necticut of  1662  as  the  organic  law  of  the  state,  it  is  provided: 
''That  no  man's  life  shall  be  taken  away:  no  man's  honor  or 
good  name  shall  be  stained:  no  man's  person  shall  be  arrested, 
restrained,  banished,  dismembered,  nor  any  ways  punished: 
no  man  shall  be  deprived  of  his  wife  or  children:  no  man's 
goods  or  estate  shall  be  taken  away  from  him,  nor  any  ways 
indamaged  under  the  colour  of  law,  or  countenance  of  au- 
thority; unless  clearly  warranted  by  the  laws  of  this  state." 
In  Maryland's  constitution  of  the  same  year  it  is  provided: 
"That  every  freeman,  for  any  injury  done  him  in  his  person 
or  property,  ought  to  have  remedy,  by  the  course  of  the 
law  of  the  land,  and  ought  to  have  justice  and  right  freely 
without  sale,  freely  without  any  denial,  and  speedily  without 
delay,  according  to  the  law  of  the  land."  In  North  Carolina's 
constitution  of  the  same  year  it  is  provided :  "That  no  freeman 
ought  to  be  taken,  imprisoned,  or  disseized  of  his  freehold, 
liberties,  or  privileges,  or  outlawed,  or  exiled,  or  in  any  manner 
destroyed,  or  deprived  of  his  life,  liberty,  or  property,  but  by 
the  law  of  the  land."  In  Pennsylvania's  constitution  of  the 
same  year  it  is  provided :  "  Nor  can  any  man  be  justly  deprived 
of  his  liberty  except  by  the  laws  of  the  land,  or  the  judgment  of 
his  peers."  In  Virginia's  constitution  of  the  same  year  it  is 
provided:  "That  no  man  be  deprived  of  his  liberty,  except  by 


ing  to  the  nature  of  the  case;  the 
duel,  ordeal,  or  compurgation,  in 
criminal  cases,  the  duel,  witnesses, 
charters,  or  recognition,  in  pro- 
perty cases."  Bigelow,  History  of 
Procedure,  155,  n. 


1  Pollock  and  Maitland,  Hist,  of 
English  Law,  2d  ed.,  i,  173. 

1  Cf.  McGehee,  Due  Process  of 
Law,  6. 


III.]    EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  77 

the  law  of  the  land  or  by  the  judgment  of  his  peers."  In  Ver- 
mont's constitution,  drafted  in  1777  and  affirmed  in  1779,  it  is 
provided :  "  Nor  can  any  man  be  justly  deprived  of  his  liberty, 
except  by  the  laws  of  the  land  or  the  judgment  of  his  peers." 
In  South  Carolina's  constitution  of  1778  it  is  provided:  "That 
no  freeman  of  this  state  shall  be  taken  or  imprisoned,  or  dis- 
seized of  his  freehold,  liberties,  or  privileges,  or  outlawed, 
exiled,  or  in  any  manner  disseized  or  deprived  of  his  life, 
liberty,  or  property,  but  by  the  judgment  of  his  peers  or  by 
the  law  of  the  land."  In  Massachusetts'  constitution  of  1780 
it  is  provided  that  "  no  subject  shall  be  arrested,  imprisoned, 
despoiled,  or  deprived  of  his  property,  immunities,  or  privi- 
leges, put  out  of  the  protection  of  the  law,  exiled,  or  deprived 
of  his  life,  liberty,  or  estate,  but  by  the  judgment  of  his  peers, 
or  the  law  of  the  land."  In  the  New  Hampshire  constitution 
of  1784  the  same  provision  is  repeated,  word  for  word. 

When  the  Fifth  Amendment  was  adopted,  the  essence  of  Chapter  39 
chapter  39  passed  into  the  Federal  Constitution  in  this  form: 
"No  person  shall  be  ...  deprived  of  life,  liberty,  or  property,  ment, 
without  due  process  of  law."  In  construing  that  clause  the 
Supreme  Court  has  said:  "The  words  'due  process  of  law* 
were  undoubtedly  intended  to  convey  the  same  meaning  as 
the  words  'by  the  law  of  the  land'  in  Magna  Carta.  Lord 
Coke,  in  his  commentary  on  those  words,1  says,  they  mean 
due  process  of  law.  The  constitutions  which  had  been  adopted 
by  the  several  states  before  the  formation  of  the  Federal 
Constitution,  following  the  language  of  the  Great  Charter  more 
closely,  generally  contained  the  words,  'but  by  the  judgment 
of  his  peers,  or  the  law  of  the  land.'  "  2  When  at  a  later  day  the 
essence  of  chapter  39  passed  into  the  Fourteenth  Amendment  and  in  the 
in  this  form,  "nor  shall  any  state  deprive  any  person  of  life,  ourteer 
liberty,  or  property,  without  due  process  of  law,"  it  "wrought 
a  revolution  in  American  jurisprudence.  As  the  Supreme 
Court  has  expressed  that  fact  in  a  leading  case:  "While  it  has 
been  a  part  of  the  Constitution,  as  a  restraint  upon  the  power 
of  the  states,  only  a  few  years,  the  docket  of  this  Court  is 
crowded  with  cases  in  which  we  are  asked  to  hold  that  state 
courts  and  state  legislatures  have  deprived  their  own  citizens 

1  2  Inst.  50. 

*  Murray  v.  Hoboken  Land  and  Improvement  Co.,  8  How.  272. 


78  THE  AMERICAN  CONSTITUTION  [Cn. 

of  life,  liberty,  or  property  without  due  process  of  law."  l  Since 
that  declaration  was  made  in  1877  the  volume  of  serious  liti- 
gation in  the  Supreme  Court,  involving  those  very  questions, 
has  continued  to  grow  until  it  may  be  said,  without  exaggera- 
tion, that  the  main  business  of  that  Court  now  is  to  construe  and 
enforce  chapter  39  of  the  Great  Charter  as  a  national  limitation 
upon  the  action  of  state  courts,  state  executives,  and  state  leg- 
islatures. In  the  case  just  cited  the  Court  said:  "The  prohibi- 
tion against  depriving  the  citizen  or  subject  of  his  life,  liberty, 
or  property,  without  due  process  of  law,  is  not  new  in  the 
constitutional  history  of  the  English  race.  It  is  not  new  in 
the  constitutional  history  of  this  country,  and  it  was  not  new 
in  the  Constitution  of  the  United  States  when  it  became  a  part 
of  the  Fourteenth  Amendment,  in  the  year  1866.  The  equi- 
valent of  the  phrase 'due  process  of  law,'  according  to  Lord 
Coke,  is  found  in  the  words  'law  of  the  land,'  in  the  Great 
Charter,  in  connection  with  the  writ  of  habeas  corpus,  the  trial 
by  jury,  and  other  guarantees  of  the  rights  of  the  subject 
against  the  oppression  of  the  Crown." 

A  manifest  The  great  Court  has,  however,  fallen  in  that  case,  as  in  the 

historical  error,  preceding  case  of  Murray  v.  Hoboken  Land  and  Improvement 
Co.,  into  a  manifest  historical  error  when  it  assumes  that  the 
due  process  of  law  clause,  as  it  appears  in  the  Fifth  and  Four- 
teenth Amendments,  should  be  construed  as  it  was  understood 
in  England  in  1632  when  Coke's  "  Second  Institute  "  —  a  com- 
mentary on  Magna  Carta  —  was  published.  The  fact  cannot 
be  ignored  that  Coke,  who  as  a  Privy  Councillor  sat  in  the  Star 
Chamber,  died  September  3,  1634,  while  the  entire  code  of 
Star  Chamber  law  and  High  Commission  law  was  in  full  force. 
During  the  one  hundred  and  forty-two  years  that  intervened 
between  Coke 's  death  and  the  severance  of  the  English  colon- 
ies in  America  from  the  mother  country,  what  may  be  called 
the  ancient  Constitution  of  England,  first  clearly  defined  in 
Magna  Carta,  was  transformed  into  the  modern  Constitution 
Results  of  the  through  the  Revolutions  of  1640  and  1688.  The  reformed  and 
Revolutions  of  invigorated  constitutional  system  that  stands  out  after  those 
revolutions  was  a  vastly  wider  and  more  complete  fabric  of 
liberty  under  law  than  that  existing  in  Coke's  time.  Those  revo- 
lutions brought  into  being  many  new  constitutional  principles, 
1  Davidson  ».  New  Orleans,  96  U.  S.  97. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  79 

most  of  which  passed  into  American  law,  of  which  Coke 
never  heard.  As  a  practical  illustration  reference  may  be  made 
to  the  recent  notable  discussion  that  occurred  in  Twining  v. 
New  Jersey,1  in  which  the  Court  had  occasion  to  consider  the 
origin  of  the  constitutional  right  to  an  exemption  from  compul- 
sory self-incrimination.  Down  to  Coke's  death  that  compulsory 
principle  was  a  part  of  the  Star  Chamber  code.  Not  until  after 
the  Revolution  of  1688,  and  as  a  consequence  of  it,  was  that 
Star  Chamber  process  extinguished.2  The  exemption  from 
compulsory  self-incrimination,  to  which  the  Revolution  of  1688  Exemption 
gave  birth,  had  become  so  clearly  defined  in  English  constitu- 
tional  law,  prior  to  the  separation  of  the  American  colonies 
from  the  mother  country,  that  the  bills  of  rights  of  our  first 
state  constitutions  bristle  with  definitions  of  it.  That  exemp- 
tion was  first  stated  in  a  dogmatic  form  in  the  bills  of  rights  of 
the  state  constitutions  of  1776.  We  have  the  Court's  word  for 
it  that  "the  exemption  from  testimonial  compulsion,  that  is, 
from  disclosure  as  a  witness  of  evidence  against  one's  self,  forced 
by  any  form  of  legal  process,  is  universal  in  American  law, 
though  there  may  be  differences  as  to  its  exact  scope  and  lim- 
its." That  exemption  only  became  "universal  in  American 
law  "  because  it  had  become  firmly  fixed  in  English  law  between 
1688  and  1776.  The  new  constitutional  principle,  forbidding 
compulsory  self-incrimination,  that  passed  into  all  or  nearly 
all  of  our  original  state  constitutions,  is  highly  typical  of  the  fact 
that  the  bills  of  rights  of  those  first  state  constitutions  are  but 
epitomes,  and  the  very  best  epitomes  of  the  English  constitu- 
tional system  as  it  stood  forth  after  the  Revolutions  of  1640  and 
1688.  The  draftsmen  of  those  constitutions  would  have  recoiled 
with  horror  at  the  thought  that  they  were  founding  American 
constitutional  law  upon  the  ancient  English  Constitution  as  it 
existed  in  1632 — with  the  Star  Chamber  and  High  Commission 
intact  —  and  not  upon  the  reformed  English  Constitution,  as 
Blackstone  described  it  in  the  first  book  of  his  famous  "  Com-  Blackstone 
mentaries,"  put  in  their  present  form  in  1758.  Burke,  in  his 
famous  conciliation  speech  made  in  the  House  of  Commons  in 
1775,  said:  "I  hear  that  they  [English  booksellers]  have  sold 
nearly  as  many  of  Blackstone's  '  Commentaries '  in  America 

*  211  U.  S.  78. 

•  Stephen,  History  of  Criminal  Law,  i,  440. 


8o 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Modern  Eng- 
lish system 
embodied  in 
state  consti- 
tutions. 


Justice 
Matthews' 
correct  view. 


as  in  England.  General  Gage  marks  out  this  disposition  very 
particularly  in  a  letter  on  your  table." 

Those  "  Commentaries  "  were  taught  at  William  and  Mary 
College,  before  the  Revolution  of  1776,  by  Chancellor  Wythe, 
who  numbered  Marshall,  Jefferson,  and  Monroe  among  his 
students.  American  lawyers  of  that  day,  as  of  this,  knew  Coke 
through  Blackstone,  with  his  doctrines  amended  and  expanded 
by  the  changes  the  Revolutions  of  1640  and  1688  had  wrought 
in  the  ancient  Constitution  of  1632.  Thus  trained  and  influ- 
enced, the  founders  of  this  Republic  epitomized  in  our  first 
state  constitutions  the  modern  English  Constitution,  as 
Blackstone  had  defined  it. 

The  documentary  evidence  upon  that  subject  is  so  over- 
whelming as  to  preclude  every  other  hypothesis.  It  being  thus 
certain  that  the  English  constitutional  law  that  passed  into  our 
first  state  constitutions  was  drawn  from  the  reformed  English 
system  as  Blackstone  defined  it  in  1758,  is  it  conceivable  that 
the  English  constitutional  law  now  embodied  in  our  federal 
fabric  was  drawn  from  the  ancient  and  unreformed  English 
system  as  Coke  described  it  in  1632,  before  the  first  meeting 
of  the  Long  Parliament,  whose  work  is  an  immortality?  If  any- 
thing in  the  history  of  any  country  is  certain,  it  is  that  the 
essence  of  the  English  constitutional  system  as  reformed  by  the 
Revolutions  of  1640  and  1688,  and  as  defined  by  Blackstone  in 
1758,  passed  into  our  first  state  constitutions,  which  were  the 
filter-beds  through  which  the  essence  of  the  reformed  English 
system  passed  into  the  existing  Constitution  of  the  United 
States.  Therefore,  in  construing  the  due  process  of  law  clause, 
as  it  appears  in  the  Fifth  and  Fourteenth  Amendments,  nothing 
but  confusion  and  inaccuracy  can  result  from  the  accept- 
ance of  the  false  standard  contained  in  a  misleading  anachron- 
ism. We  should  have  nothing  to  do  with  Coke's  sketch  of  the 
ancient  English  Constitution  as  it  existed  in  1632  —  we  should 
turn  instead  to  the  true  fountain  opened  for  us  by  Blackstone 
in  1758. 

In  Hurtado  v.  California,1  Mr.  Justice  Matthews  was  the 

first  to  perceive  that  the  rule  of  construction,  based  on  English 

constitutional  theory  as  it  existed  in  Coke's  time,  was  at  once 

unsound  and  unpractical.    In  rejecting  that  idea,  accepted 

»  iioU.  8.528. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  8l 

without  due  consideration  by  Justices  Curtis  and  Miller,  he 
said:  "It  would  be  to  stamp  upon  our  jurisprudence  the  un- 
changeableness  attributed  to  the  laws  of  the  Medes  and  Per- 
sians. This  would  be  all  the  more  singular  and  surprising,  in 
this  quick  and  active  age,  when  we  consider  that,  owing  to  the 
progressive  development  of  legal  ideas  and  institutions  in  Eng- 
land, the  words  of  Magna  Carta  stood  for  very  different  things  AT 

THE  TIME  OF  THE  SEPARATION  OF  THE  AMERICAN  COLONIES  jwm 

what  they  represented  originally.  ...  In  this  country  written 
constitutions  were  deemed  essential  to  protect  the  rights  and 
liberties  of  the  people  against  the  encroachments  of  power 
delegated  to  their  governments,  and  the  provisions  of  Magna 
Carta  were  incorporated  into  bills  of  rights"',  that  is,  into  bills 
of  rights  of  the  first  state  constitutions,  because  there  were 
no  other  bills  of  rights.  In  these  golden  sentences  Mr.  Justice 
Matthews  solved  the  problem  by  announcing  that  the  Court, 
when  construing  the  due  process  of  law  clause  as  it  appears 
in  the  Fifth  and  Fourteenth  Amendments,  should  take  that 
formula  with  the  meaning  annexed  to  it  in  English  constitu- 
tional law,  "  at  the  time  of  the  separation  of  the  American  colo- 
nies" as  contra-distinguished  from  the  meaning  annexed  to  it 
in  1632,  when  Coke's  "  Second  Institute  "  was  published.  That 
conclusion  he  greatly  strengthened  by  the  statement  that  "the 
provisions  of  Magna  Carta  were  incorporated  into  bills  of 
rights,"  that  is,  into  the  bills  of  rights  of  our  first  state  con- 
stitutions. Thus  a  new  and  unassailable  historical  test  was  laid 
down  as  a  guide  whenever  a  particular  law  or  procedure  is 
drawn  in  question  on  the  ground  that  it  is  wanting  in  due  pro- 
cess of  law,  and  that  new  test  received  emphatic  confirmation 
when  the  Court,  speaking  through  Mr.  Justice  Gray  in  Lowe  Justice  Gray's 
v.  Kansas,1  said:  "Whether  the  mode  of  proceeding  prescribed  ^ 
by  this  statute,  and  followed  in  this  case,  was  due  process  of  law, 
depends  upon  the  question  whether  it  was  in  substantial  accord 
with  the  law  and  usage  of  England  BEFORE  THE  DECLARATION  OF 
INDEPENDENCE,  and  in  this  country  since  it  became  a  nation, 
in  similar  cases." 

That  emphatic  refusal  to  recognize  as  a  correct  historical 
test  the  condition  of  English  constitutional  law  as  it  existed  in 
1632  was  repeated  in  no  uncertain  terms  in  Twining  v.  New 

>  163  U.  S.  81. 


82 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Origin  of  re- 
presentative 
government. 


justice ^  Jersey,1  when  the  Court,  speaking  through  Mr.  Justice  Moody, 

Moody'sview.  g^.  "Second.  It  does  not  follow,  however,  that  a  procedure 
settled  in  English  law  at  the  time  of  the  emigration,  and 
brought  to  this  country  and  practiced  by  our  ancestors,  is  an 
essential  element  of  due  process  of  law.  If  that  were  so,  the  pro- 
cedure of  the  first  half  of  the  seventeenth  century  would  be  fastened 
upon  American  jurisprudence  like  a  straight-jacket,  only  to  be 
loosed  by  constitutional  amendment.11 

After  reading  the  foregoing,  what  student  of  American  con- 
stitutional law  can  fail  to  perceive  that  the  clue  to  the  laby- 
rinth consists  in  a  correct  understanding  of  what  the  English 
Constitution  really  was  when  its  basic  principles  passed  into  the 
state  constitutions  adopted  in  1776  and  shortly  thereafter. 

During  the  five  centuries  that  preceded  the  granting  of  the 
Great  Charter,  -the  principle  of  representation  was  actively 
employed  in  the  popular  courts  of  the  hundred  and  shire  in 
which  the  English  people  were  trained  in  the  art  of  self- 
government.  From  the  very  beginning  in  the  hundred  court 
appeared  the  reeve  and  four  select  men  from  each  township 
within  the  hundred ; 2  in  the  shire  court,  like  representatives 
appeared  from  each  township  within  the  shire,3  while  the 
twelve  senior  thegns  appeared  as  a  representative  body  in  the 
courts  of  both  hundred  and  shire.4  The  marvel  is  that  not 
until  after  five  centuries  of  such  training  did  it  occur  to  any  one 
that  just  as  the  reeve  and  four  select  men  could  be  sent  to 
speak  for  the  township  in  the  county  court,  two  knights  elected 
in  that  court  could  be  sent  to  speak  for  the  county  in  the 
national  assembly  at  Westminster.  The  first  expression  of  that 
Writs  of  1213.  idea  is  found  in  1213,  when  John  called  a  council  at  Oxford,  to 
which  the  sheriffs  were  directed  to  summon,  besides  the  armed 
force  of  knights,  four  discreet  men  from  each  shire,  to  share  in 
the  King's  deep  speech  touching  the  affairs  of  his  kingdom,  to 
form,  in  short,  the  first  representative  Parliament.5 

See  also  Bigelow,  Hist,  of  Procedure, 

133- 

4  ^Ethelred,  iii,  sec.  3;  Cod.  Dipl., 
iv,  137- 

5  "Quatuor  discretes  homines  de 
comitatu  tuo  illuc  venire  facias  ad 
nos  ad  eundem  terminum  ad  loquen- 
dum    nobiscum    de    negotiis    regni 
nostri."  Lords'  Report,  App.  i,  p.  2. 


1  211  U.  S.  101. 

*  In  that  arrangement  appears 
the  earliest  form  of  the  represent- 
ative principle.  Hen.  I,  vii,  sees. 
4,  7.  Stubbs,  Const.  Hist.,  i,  103, 
note  i. 

8  That  fact,  left  questionable  in 
the  laws,  is  proven  by  the  later  prac- 
tice. Hen.  I,  vii,  sees.  4,  7;  li,  sec.  2. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  83 

To  Henry  I  IPs  Parliament  of  1254  the  chosen  knights  from  Writs  of  1254. 
the  shires  were  summoned  for  the  first  time  since  the  reign  of 
John.1  In  order  to  conclude  the  arrangements  embodied  in  the 
"  Mise  of  Lewes,"  and  in  order  to  gain  a  broad  popular  basis  for 
his  government,  Simon  of  Montfort,  in  1265,  issued  the  writ  Writs  of  1265. 
for  his  famous  Parliament,  to  which  were  summoned  not  only 
two  discreet  knights  from  each  shire,  but  also,  for  the  first  time 
in  English  history,  two  representatives  from  the  cities  and  bor- 
oughs.2 A  period  of  thirty  years  then  elapsed  before  the  experi- 
ment was  repeated ;  the  representatives  of  the  cities  and  towns 
were  not  again  summoned  until  Edward's  Great  Parliament  of  Great  Parlia- 
1295,  in  which  the  estate  system  in  England  reached  for  the  ment  of  I29S> 
first  time  its  full  and  final  development.   That  Parliament  — 
in  which  the  baronage  appear  in  person  and  the  clergy  and  the 
commons,  each  as  an  estate  of  the  realm,  in  the  persons  of  their 
chosen  representatives  —  completes  the  transition  in  the  con-  Transition 
stitution  of  the  national  assembly  from  a  feudal  council  to  a  J^^^ 
council  of  estates.3  The  time  had  now  come  when  the  supreme  council  of 
question,  involving  the  right  of  the  nation  to  tax  itself,  —  a  estates- 
right  which  the  barons  at  Runny mede  had  clearly  defined,  but 
which  the  struggles  of  eighty  years  had  failed  to  confirm, — 
had  to  be  settled  once  and  for  all  between  the  nation  and  the 
King.    When,  in  1297,  Edward  I  precipitated  the  conflict  by 
attempting  to  tax  the  nation  without  its  authority,  it  met  him 
in  arms  under  the  leadership  of  the  earls  Bigod  and  Bohun, 
who  demanded  the  confirmation  of  the  charters,  supplemented  Confirmatio 
by  certain  additional  articles,  all  of  which  were  confirmed  by  c^rtarum^ 

Nov.  5,  1297. 

the  King  at  Ghent  on  November  5.4  The  new  articles,  thus 
solemnly  made  a  part  of  the  Constitution,  not  only  denounced 
all  of  the  unauthorized  taxation,  but  they  also  provided  that, 
with  certain  exceptions,  no  taxes  should  thenceforth  be  imposed 
without  the  common  consent  of  the  realm  and  to  the  common 
profit  thereof.  Thus  by  the  reincorporation  into  the  charters 

1  For  the  writ  see  Ibid.  13.  quod  tune  de  communi  consilio  ordina- 

8  For  the  writ,  see  Ibid.  33;  Select  bitur  in  prosmissis.     Lords1   Report, 

Charters,  415.  App.  i,  p.  66. 

3  From  that  time  the  attendance  4  Fadera,  i,  80.  The  charters  had 

of  representatives  from  both  shires  been  previously  confirmed  by  inspex- 

and  towns  has  been  continuous  or  imus  on  the  I2th  of  October.  Fad- 

nearly  so;  both  knights  and  bur-  era,  i,  879;  Statutes  of  the  Realm, 

gesses  are  summoned  ad  faciendum  i,  114-119. 


84 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Two  stages 
of  growth. 


Parliament 
divided  into 
two  houses. 


Sheldonian 
compact  of 
1664. 


of  these  vital  limitations  upon  the  royal  right  of  taxation, 
which  for  more  than  eighty  years  had  been  omitted  from  them, 
the  prolonged  struggle  inaugurated  by  the  barons  at  Runny- 
mede  ended  at  last  in  a  completely  successful  consummation. 
The  exclusive  right  of  the  national  assembly  to  authorize  tax- 
ation was  now  fully  and  finally  recognized,  save  in  so  far  as 
that  right  was  limited  by  the  proviso,  "saving  the  ancient 
aids  and  prizes  due  and  accustomed."  l 

Thus  it  appears  that  the  history  of  the  representative  system 
is  divided  into  two  epochs :  first,  that  in  which  the  reeve  and 
four  men  appear  as  representatives  of  the  township  in  the 
courts  of  the  hundred  and  the  shire;  second,  that  in  which 
the  representatives  of  the  shires  and  towns  appear  in  national 
parliaments.  At  the  time  fixed  in  the  writs  the  lords  spiritual 
and  temporal,  together  with  the  representatives  from  the 
shires  and  towns,  were  expected  to  appear  before  the  King  at 
Westminster  or  at  any  other  place  he  had  seen  fit  to  designate. 
Not  until  the  reign  of  Edward  I  did  Westminster  become  in  the 
full  sense  of  the  term  the  seat  of  government ;  and  not  until  the 
reign  of  Edward  III  was  Parliament  definitely  divided  into  two 
houses.  In  1377  Sir  Thomas  Hungerford  was  chosen  Speaker, 
the  first  to  whom  the  title  and  position  were  definitely  assigned ; 
while  the  Chancellor,  not  necessarily  a  peer,  usually  presided  in 
the  House  of  Lords.2  The  clergy  of  the  two  provinces,  refusing 
to  be  jointly  assembled  as  an  estate  of  Parliament,  continued 
to  tax  themselves  in  their  provincial  convocations  until  after 
the  restoration  of  Charles  II,  when,  in  1664,  by  a  mere  verbal 
agreement  between  Archbishop  Sheldon  and  Lord  Chancellor 
Clarendon,  an  arrangement  was  made  under  which  the  clergy 
waived  their  right  to  tax  themselves,  and  agreed  to  be  assessed 
by  the  laity  in  Parliament,  gaining  thereby  the  new  right  of 
voting  at  the  election  of  the  members  of  the  House  of  Commons 
by  virtue  of  their  ecclesiastical  benefices.3  Thus  the  fact  was 

1  By  that  proviso  the  King  refused  Part.  Practice,  23  (and  note  4),  49, 
to  surrender  his  old  exchequer  rights 
over  the  settlers  on  his  domain  lands, 
and  over  the  tolls  traditionally  fixed 
(custuma  antiqua),  those,  namely,  on 
wool,  hides,  and  leather.  See 
Gneist,  Eng.  Parliament,  note  to  p. 
136  (Shee's  trans.). 

*  Rot.  Par/.,  ii,  374.    See   May, 


243,  246. 

8  The  results  of  this  silent  revolu- 
tion, called  "the  greatest  alteration 
in  the  Constitution  ever  made  with- 
out an  express  law,"  were  distinctly 
recognized  in  an  Act  of  Parliament 
passed  in  the  following  year  (16  and 
17  Par.,  ii,  c.  i). 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  85 

fixed  that  the  Parliament  should  consist  of  two  houses  instead 
of  three.  At  first  the  Commons  were  permitted  to  participate 
only  in  taxation,  a  burden  that  drew  after  it  the  right  to  parti- 
cipate in  legislation.  Finally  Parliament  as  a  whole  established 
its  right  to  control  the  royal  administration,  to  impeach  the 
Ministers,  and  to  depose  the  King  himself  in  the  last  resort.  The 
deposition  of  Edward  II  was  settled  by  the  Parliament  of  1327, 
and  in  1399  the  same  procedure  removed  Richard  II,  who  was 
succeeded  by  Henry  IV,  the  first  king  of  the  House  of  Lan-  Accession 
caster.1  During  its  domination  it  was  that  the  immature  par-  Lancaster0 
liamentary  system  collapsed  through  a  set  of  causes  that  have 
a  history  of  their  own.  As  the  parliamentary  system  was  the 
outcome  of  the  estate  system,  the  collapse  of  the  one  naturally 
followed  the  collapse  of  the  other.  Under  the  favorable  con- 
ditions thus  presented,  by  the  paralysis  of  the  constitutional 
forces  by  which  it  had  been  so  long  held  in  check,  the  monarchy, 
upon  the  accession  of  Edward  IV,  lifted  up  its  head,  and  casting  Accession 
off  the  fetters  by  which  it  had  been  bound  by  the  parliament-  y0^kouse  of 
ary  system  on  the  one  hand  and  by  the  system  of  royal  admin- 
istration on  the  other,  entered  upon  a  fresh  career  of  auto- 
cracy which  was  not  destined  to  be  broken  until  the  days  of  the 
Stuart  kings. 

A  point  has  now  been  reached  from  which  it  is  possible  to  Origin  of  the 
review  the  advance  made  by  Parliament  during  the  period  that 
intervenes  between  the  Norman  Conquest  and  the  end  of  the 
fourteenth  century.  During  that  period  the  feudal  councils 
that  gathered  around  the  Norman  and  Angevin  kings,  with 
authority  too  vague  and  shadowy  for  precise  definition,  are 
gradually  transformed  into  an  assembly  of  estates,  which  wins 
not  only  the  right  to  participate  in  taxation  and  legislation,  but 
to  supervise  and  control  the  entire  system  of  national  adminis- 
tration, and,  in  the  last  resort,  to  depose  the  King  himself.  At 
the  end  of  the  period  we  find  that  the  sum  of  governmental 
power  originally  vested  in  the  King  in  Council  has  been  vastly 
reduced  by  the  operation  of  two  distinct  processes  of  sub- 
traction. In  the  first  place,  by  the  growth  out  of  the  continual 
council  —  which  soon  came  to  be  known  as  the  Curia  Regis  — 
of  the  common-law  courts  of  King's  Bench,  Common  Pleas,  and 

1  Upon  the  whole  subject,  see  The  Origin  and  Growth  of  the  Eng.  Const., 
i,  428-515. 


86 


THE  AMERICAN  CONSTITUTION 


([CH. 


Equitable 
jurisdiction  of 
the  Chancellor. 


Origin  of 
courts  of 
assize 


Powers 
retained 
by  the  King 
in  Council. 


Exchequer,  the  greater  part  of  the  judicial  work  of  the  Council 
was  permanently  transferred  to  three  distinct  tribunals,  each 
devoted  to  the  hearing  of  a  definite  class  of  causes.  And  when 
at  a  later  day  out  of  the  residuum  of  judicial  power  retained 
by  the  Council  was  developed  the  equitable  jurisdiction  of  the 
Chancellor,  the  judicial  functions  of  the  Crown  were  confined 
within  a  still  narrower  circle.  By  the  transfer  thus  brought 
about  of  the  greater  part  of  the  judicial  business  originally  dis- 
patched by  the  King  in  Council  to  the  great  courts  of  law  and 
equity,  the  central  administration,  in  its  judicial  aspect,  was 
transformed  into  a  government  of  law  as  distinguished  from 
a  government  of  functionaries.1  Out  of  the  fusion  between  the 
central  administration  of  justice  vested  in  the  Curia  Regis  with 
the  local  administration  vested  in  the  shire-moots,  grew  the 
modern  courts  of  assize,  in  which  the  itinerant  justices  still 
preside,  but  in  which  the  general  assembly  of  the  shire  is  repre- 
sented only  by  the  grand  and  petty  jurors  who  are  summoned 
by  the  sheriff  for  the  trial  of  civil  and  criminal  cases.  Only  by 
working  out  that  process  of  fusion  between  the  system  of  royal 
law  radiating  from  the  Curia  Regis,  with  the  system  of  popular 
law  immemorially  administered  in  the  local  courts,  can  we 
understand  the  history  of  the  typical  circuit  court  existing  in 
every  state  of  the  American  commonwealth,  in  which  all  cases 
at  common  law,  civil  and  criminal,  are  disposed  of  by  a  judge 
with  the  aid  of  juries,  grand  and  petty.  By  the  side  of  that  sys- 
tem we  have  also  reproduced  the  equitable  jurisdiction  of  the 
English  Chancellor,  sometimes  vested  in  a  separate  tribunal, 
but  generally  in  a  court  having  common-law  powers. 

While  the  law  courts  were  thus  drawing  to  themselves  the 
control  of  the  bulk  of  the  judicial  work  originally  belonging  to 
the  King  in  Council,  the  assembly  of  estates  was  struggling,  as 
heretofore  pointed  out,  to  draw  to  itself  the  exclusive  control 
of  the  legislative,  taxative,  and  fiscal  business  of  the  kingdom. 
But  before  the  national  assembly  was  in  a  position  to  essay  so 
great  a  task,  a  reorganization  had  first  to  be  effected  in  its  own 


1  "The  guarantee  of  the  suprem- 
acy of  the  law  leads  to  a  principle 
which,  so  far  as  I  know,  it  has  never 
been  attempted  to  transplant  from 
the  soil  inhabited  by  Anglican  peo- 
ple, and  which,  nevertheless,  has 


been  in  our  system  of  liberty  the 
natural  production  of  a  thorough 
government  of  law  as  contra-distin- 
guished to  a  government  of  func- 
tionaries." Lieber,  Civil  Liberty  and 
Self-Government,  91. 


III.]    EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  87 

constitution,  a  result  brought  about  by  the  building-up  along- 
side of  the  older  feudal  council  of  a  new  popular  body  composed 
of  representatives  of  the  shires  and  towns.  In  the  Parliament 
thus  reconstructed,  the  Commons  soon  ceased  to  be  mere  aux- 
iliaries of  the  baronial  body,  —  they  became  the  more  active 
and  aggressive  force  in  the  new  combination.  And  yet,  when 
a  summing-up  is  made  of  the  results  of  the  two  processes  of 
subtraction,  the  important  fact  remains  that  neither  process  was 
exhaustive.  At  the  end  of  the  struggle  in  which  Parliament  did 
its  utmost  to  win  the  exclusive  control  of  legislation  as  well  as 
taxation,  there  still  remained  in  the  hands  of  the  King  in  Coun- 
cil an  undefined  reserve  of  legislative  power  for  a  long  time 
exercised  in  the  making  and  revoking  of  a  class  of  temporary 
enactments  known  as  ordinances.  After  the  jurisdiction  of  the  Ordinances, 
four  great  courts  at  Westminster  had  been  fully  established,  an 
undefined  reserve  of  judicial  power  still  remained  to  the  King  in 
Council,  a  reserve  out  of  which  at  a  later  day  grew  that  famous 
engine  of  the  York  and  Tudor  monarchy  finally  known  as  the 
Star  Chamber. 

When,  after  the  collapse  of  the  immature  parliamentary  sys-  York 
tern  in  the  storm  and  stress  of  the  civil  war,  the  House  of  York  and  Tudor 
ascended  the  throne  in  the  person  of  Edward  IV,  he  was  careful 
to  stimulate  the  judicial  powers  of  the  Council,  which  he  finally 
converted  into  an  engine  of  tyranny.  So  far  as  constitutional 
history  is  concerned,  the  short  reign  of  Richard  III  is  a  mere 
episode.  The  real  successor  of  Edward  IV,  in  a  constitutional 
sense,  is  Henry  VI I .  The  despotic  policy  founded  by  Edward  was 
continued  by  Henry  and  his  successors,  who  systematized  and 
enforced  it  as  a  permanent  system  of  government.  From  the 
accession  of  Henry  VII  to  the  Revolution  of  1640  the  history  of 
the  Council  is  the  history  of  the  monarchy.  During  that  period 
of  a  century  and  a  half,  both  the  law  courts  and  the  Parlia- 
ment crouched  at  the  feet  of  its  paramount  authority.  The 
soundest  critics  agree  in  the  conclusion  that  the  famous  Act  of 
3  Henry  VII,  c.  I,  was  only  intended  to  invigorate,  by  parlia- 
mentary sanction,  the  ancient  prerogative  criminal  jurisdiction 
of  the  Crown,  which,  as  early  as  the  reign  of  Edward  III,  we 
hear  of  the  "chancellor,  treasurer,  justices,  and  others  exer- 
cising in  the  ' chambre  des  estoiles'  at  Westminster."  The  The  Star 
powers  of  the  special  committee  or  court,  organized  under  the  Chamber- 


88 


THE  AMERICAN  CONSTITUTION 


[Cn. 


From 

Edward  IV 
to  Wolsey. 


Cromwell's 
new  policy. 


Collapse  of 
representative 
government  on 
the  Continent. 


Act  of  3  Henry  VII,  c.  I,  after  maintaining  a  separate  existence 
for  about  fifty  years,  fell  back,  toward  the  close  of  the  reign 
of  Henry  VIII,  to  the  general  body  of  the  Council.  The  Act  of 
31  Henry  VIII,  which  gave  to  royal  proclamations  the  force 
of  law,  provided  that  offenders  against  them  might  be  punished 
by  the  ordinary  members  of  the  Council,  together  with  certain 
bishops  and  judges,  "in  the  star  chamber  or  elsewhere."  l 

From  the  accession  of  Edward  IV  down  to  the  fall  of  Wolsey, 
the  settled  policy  of  the  Crown  had  been  to  discourage  par- 
liamentary action,  by  calling  the  estates  together  only  on  rare 
occasions,  and  by  confiding  as  far  as  possible  the  entire  central 
administration  of  the  state  to  the  Privy  Council.  That  policy 
Cromwell  suddenly  reversed  by  the  constant  employment  of 
Parliament  as  a  tool  through  whose  acts  the  papal  supremacy 
was  overthrown  and  the  church  stripped  at  once  of  its  estates 
and  independence.  Emboldened  no  doubt  by  the  fact  that  the 
Lords  were  still  a  subservient  and  spiritless  body  that  cowered  at 
the  feet  of  the  King,  and  that  the  Commons  were  largely  made 
up  of  members  nominated  directly  or  indirectly  by  the  Privy 
Council,  Cromwell,  so  far  from  shrinking  from  an  appeal  to  the 
estates,  was  keen  to  call  them  together,  year  after  year,  and  to 
force  upon  their  attention  every  possible  question  to  which  he 
desired  to  add  the  forms  of  legality  or  the  apparent  sanction  of 
popular  approval. 

With  the  close  of  the  Middle  Ages,  every  effort  that  had 
been  made  in  the  direction  of  representative  government  on 
the  Continent  of  Europe  came  to  an  end.  Then  it  was  that  the 
free  constitutions  of  Castile  and  Aragon  were  overthrown  by 
Charles  V  and  Philip  II;  then  it  was  that  the  States-General 
of  France  met  for  the  last  time  (1614)  before  their  final  meet- 
ing (1789)  upon  the  eve  of  the  French  Revolution.2  But  the 
new  system  of  absolutism  reestablished  by  the  House  of  York 
and  perpetuated  by  that  of  Tudor  did  not  aim  at  the  aboli- 
tion of  the  older  forms  of  constitutional  life  by  which  the 
monarchy  had  been  fettered  for  more  than  a  century ;  it  simply 


1  For  the  literature  touching  the 
history  of  the  Star  Chamber,  see 
The  Origin  and  Growth  of  the  Eng. 
Const.,  ii,  23-27  and  notes. 

2  Cf.  Robertson's  Charles  V,   iii, 
434;  Watson's  Philip  II,   iii,  223; 


Prescott's  Philip  II,  first  chapter  of 
bookvi;  Sismondi,  xiii,  342 ;  Macau- 
lay,  History  of  England,  i,  46-48; 
Freeman,  Growth  of  the  English  Con- 
stitution, 139. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  89 

strove  to  extinguish  forever  the  vital  spirit  which  in  the  better 
days  had  made  them  actual  restraints  on  the  royal  authority. 

That  vital  spirit  would,  no  doubt,  have  been  extinguished  English 
had  it  not  been  for  the  fact  that  just  as  the  long  night  of  Renaissance- 
political  reaction,  coextensive  with  the  York  and  Tudor  mon- 
archy, began  to  settle  down  like  a  blight  upon  the  growth  of  the 
English  Constitution,  the  dawn  of  the  Renaissance  began  to 
break  on  the  life  of  the  English  people.  While  Edward  IV  and 
Henry  VII  were  fastening  upon  the  island  kingdom  the  system 
of  absolutism  which  had  begun  to  prevail  throughout  the  Con- 
tinental nations,  the  main  body  of  the  people  were  beginning 
to  be  stirred  by  the  spirit  of  that  new  and  marvelous  era  of 
national  awakening  generally  known  as  the  English  Renais- 
sance, —  a  term  which  must  not  be  confined  to  the  mere  Real  meaning 
revival  of  learning,  but  so  expanded  as  to  embrace  the  whole  of  the  term> 
process  of  mental  and  material  development  that  brought  to 
the  English  people  its  new  conceptions  of  philosophy  and 
religion,  its  new  understanding  of  government  and  law,  its 
reawakened  interest  in  the   arts  and  sciences,  its  new-born 
activity  in  commerce  and  manufacture,  as  well  as  that  spirit 
of  discovery  and  adventure  that  widened  its  destiny  through 
conquest  and  colonization  in  another  hemisphere.   During  the 
period  in  which  Edward  IV  was  overawing  the  law  courts  and 
trampling  upon  the  Parliament,  the  "shining  seed-points  of 
light"  out  of  which  the  new  life  was  to  spring  were  being  sown 
amid  the  embers  of  the  dying  mediaevalism.  The  reign  of  mon-  Reign  of  mon- 
archy in  England,  as  in  the  rest  of  Europe,  brought  with  it  archy  brought 

,„  ,  .      .  with  it  peace. 

peace,  which  gave  a  marked  impetus  not  only  to  agriculture 
and  manufacture,  but  to  foreign  commerce.  The  shores  of  the 
Mediterranean  no  longer  marked  the  limits  of  the  maritime 
world;  the  dominion  of  the  seas  had  already  begun  to  pass 
from  the  Italian  seaports  to  the  nations  bordering  on  the 
Atlantic  seaboard ;  the  great  era  of  discovery  and  conquest  had 
now  come,  in  which  English  seamen  and  soldiers  were  soon  to 
bear  their  part.  During  the  sixteenth  century  the  Cabots,  Eraofdis- 
Gilbert,  Barlow,  Armidas,  Drake,  and  Raleigh  braved  every 
hardship  and  faced  every  danger  in  the  prosecution  of  Ameri- 
can discovery;  and  in  the  next  age  their  work  was  crowned  by 
the  brave  English  hearts  who  at  last  overcame  the  terrors  of 
the  wilderness,  and  laid  the  foundations  of  the  great  republic 
beyond  the  sea. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Stuarts  and 
Revolution 
of  1640. 


Conflict  be- 
tween con- 
ciliar  and  par- 
liamentary 
systems. 


Two  famous 

trading 

charters. 


To  the  Stuarts  the  conciliar  system  of  the  Tudors  passed 
unimpaired  just  at  the  moment  when  that  system  was  becom- 
ing unequal  to  the  task  of  governing  a  nation  that  had  already 
entered  upon  a  career  of  marvelous  development.  James  I  and 
Charles  I,  so  far  from  accepting  the  mission  of  reform  thus 
naturally  arising  out  of  changed  conditions,  not  only  con- 
tinued the  system  of  government  by  councils  the  Tudors  had 
bequeathed  to  them,  but  attempted  to  intensify  its  absolutism 
both  in  theory  and  practice.  What  the  constitution  of  the 
Council  was  in  the  days  of  Elizabeth  it  remained  down  to  the 
meeting  of  the  Long  Parliament,  and  during  that  period  its 
powers  were  stretched  to  a  greater  extent  than  had  ever  been 
known  before.  Between  the  reviving  parliamentary  system, 
animated  by  the  new  and  aggressive  spirit  of  liberty  that  passed 
into  the  Commons  from  the  Renaissance  and  the  Reformation, 
and  the  waning  system  of  government  by  councils,  animated  by 
the  spirit  of  absolutism,  more  than  ever  intense,  derived  from 
James,  a  conflict  was  inevitable.  That  conflict  was  a  long  and 
bitter  one.  Not  until  after  the  completion  of  two  revolutions 
was  the  English  nation  able  finally  to  subject  the  conciliar  sys- 
tem, as  organized  by  the  Tudors  and  enforced  by  the  Stuarts, 
to  the  parliamentary  system  as  it  exists  in  modern  times. 

"Within  the  period  of  ten  years,  under  the  last  of  the  Tudors 
and  the  first  of  the  Stuarts,  two  trading  charters  were  issued  to 
two  companies  of  English  adventurers.  One  of  these  charters 
is  the  root  of  the  English  title  to  the  East,  and  the  other  to  the 
West.  One  of  these  companies  has  grown  into  the  Empire  of 
India;  the  other  into  the  United  States  of  North  America."  1 
The  claim  of  the  English  Crown  to  the  territory  upon  which  the 
English  settlements  in  America  were  made  was  based  upon  the 
voyages  of  the  Cabots  made  along  the  American  coast  during 
the  years  1497  and  1498.  The  first  patent  issued  to  the  Cabots — 
the  oldest  surviving  document  connecting  the  old  land  with  the 
new 2  —  gave  to  the  patentees  the  right  to  sail  under  the  royal 
ensign,  and  to  set  up  the  royal  banner  in  any  newly  discovered 
land  as  lieutenants  and  vassals  of  the  King.  The  inchoate  right 


1  Bryce,  The  American  Common- 
wealth, i,  416. 

2  That  document,  which  is  dated 
5th  March,  1495  (1496  new  style),  is 


printed  in  the  Hakluyt  Society's 
edition  of  the  Divers  Voyages,  and  in 
Rymer's  Fosdera. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  91 

thus  acquired  by  discovery  at  the  close  of  the  fifteenth  century  English  title 
did  not  ripen  into  a  perfect  title  until  early  in  the  seventeenth,  to  new  world- 
when  the  permanent  English  settlements  in  America  were 
made.   In  order  to  regulate  the  competition  for  the  possession 
of  the  new  world,  and  to  avoid  conflicting  settlements,  and 
consequent  war  with  each  other,  the  European  nations  agreed 
"to  establish  a  principle  which  all  should  acknowledge  as  the 
law  by  which  the  right  of  acquisition,  which  they  all  asserted,  Rule 
should  be  regulated  as  between  themselves.    This  principle  resula*ins 

acquisition. 

was  that  discovery  gave  title  to  the  government  by  whose 
subjects,  or  by  whose  authority,  it  was  made,  against  all  other 
European  governments,  which  title  might  be  consummated  by 
possession."  l  The  principle  thus  established  assumed  that  the 
Indian  tribes  found  on  the  soil  were  mere  temporary  occu- 
pants. According  to  the  theory  of  the  English  Constitution  the 
title  to  all  newly  discovered  lands  accrued  to  the  King  in  his 
public  and  regal  character,  and  the  exclusive  right  to  grant 
them  resided  in  him  as  a  part  of  the  royal  prerogative:  "Upon 
these  principles  rest  the  various  charters,  and  grants  of  terri- 
tory made  on  this  continent."  2  It  is  not  therefore  strange  that 
when  James  I  executed  the  great  title-deed  of  April  10,  1606,  James's 
he  should  have  conveyed  the  heart  of  the  new  world  to  certain  charter  of 
patentees  just  as  if  it  were  a  royal  manor.  The  granting  clause 
of  the  charter  is,  "To  be  holden  of  us,  our  heirs  and  successors, 
as  of  our  manor  at  East-Greenwich,  in  the  County  of  Kent, 
in  free  and  common  soccage  only,  and  not  in  capite."  3  By 
the  charter  in  question  two  companies  were  formed,  and  to  the 
"First  Colony,"  or  London  Company,  as  it  is  usually  called,  London 
he  granted  a  tract  of  land  fronting  one  hundred  miles  on  Company. 
the  Atlantic  coast  and  extending  one  hundred  miles  into  the 
interior,  to  be  located  at  such  point  as  the  company  might 
select  between  the  thirty-fourth  and  forty-first  parallels  of 
north  latitude.  To  the  "Second  Colony,"  or  the  Plymouth  Plymouth 
Company,  he  granted  a  similar  tract  of  land,  to  be  located 
between  the  thirty-ninth  and  forty-fifth  parallels  of  north  lati- 
tude. In  the  intervening  belt  both  companies  had  the  right  to 

1  Marshall,  C.  J.,  in  Johnson  v.  *  See  Poore's  Charters  and  Consti- 

Mclntosh,  8  Wheat.  573.  tutions,  part  ii,  p.  1892.    It  is  also 

a  Taney,  C.  J.,  in  Martin  et  al.  v.  contained  in  Stith  and  in  Hazard's 

The  Lessee  of  Waddell,  16  Peters,  Hist.  Collections. 
409. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


English  la\ 
the  basis. 


London  Com- 
pany's sepa- 
rate charter 
of  1609. 


Domains  of  the 
five  southern 
colonies. 


locate,  provided  that  neither  should  settle  within  one  hundred 
miles  of  the  other.  To  an  uncivilized  country,  such  as  America 
then  was,  English  subjects  carried  with  them,  as  their  birth- 
right, the  laws  of  England  existing  at  the  time  the  coloniza- 
tion took  place.1  The  foundation  of  the  entire  fabric  was  Eng- 
lish law,  the  original  charter  providing  "that  all  and  every  the 
persons  being  our  subjects,  which  shall  dwell  and  inhabit 
within  every  or  any  of  the  said  several  colonies  and  planta- 
tions, and  every  of  their  children,  which  shall  happen  to  be 
born  within  any  of  the  limits  and  precincts  of  the  said  several 
colonies  and  plantations,  shall  have  and  enjoy  all  liberties, 
franchises,  and  immunities,  within  any  of  our  other  dominions, 
to  all  intents  and  purposes  as  if  they  had  been  abiding  and  born 
within  their  own  realm  of  England  or  any  other  of  our  said 
dominions."  2  In  May,  1607,  the  London  Company  made  the 
settlement  at  Jamestown,  the  first  permanent  settlement  made 
by  Englishmen  on  the  soil  of  the  new  world.  In  1609  a  sep- 
arate charter  was  granted  to  the  London  Company  3  which 
gave  to  it  half  the  continent;  and  within  its  larger  domain  it 
had  power  to  govern  colonies,  subject  to  the  sovereignty  of  the 
King  and  their  rights  as  British  subjects.4  Out  of  the  vast 
expanse  thus  granted  to  the  London  Company  were  carved  the 
domains  finally  distributed  between  the  five  southern  colonies 
of  Virginia,  Maryland,  North  Carolina,  South  Carolina,  and 
Georgia.  Under  a  license  obtained  from  the  Plymouth  Com- 
pany a  Puritan  settlement  was  established  in  1620  at  Ply- 
mouth, in  the  southeastern  part  of  what  is  now  the  State  of 
Massachusetts,  by  a  band  of  separatists  from  the  English 
Church,  who  had  for  a  time  dwelt  in  Holland,  prior  to  their  final 
departure  from  the  mother  country  to  their  New  England 
home.  North  of  the  Plymouth  settlement  was  established  at  a 


1  In  a  civilized  country  occupied 
by  Englishmen,  the  laws  prevailing 
at  the  time  of  conquest  continue 
until   an   alteration   is   made.     Cf. 
Taylor,  The  Science  of  Jurisprudence, 
489,  and  notes. 

2  Charters  and  Constitutions,  part 
ii,  pp.  1891-1892. 

»  Ibid.  1893. 

4  The  new  grant  extended  from 
Point  Comfort  "all  along  the  Sea 


Coast  to  the  Northward,  two  hun- 
dred miles,"  and  "along  the  Sea 
Coast  to  the  Southward,  two  hun- 
dred miles,"  and  "up  into  the  Land 
throughout  from  Sea  to  Sea,  West 
and  Northwest,"  including  all  the 
islands  within  one  hundred  miles  of 
the  coast.  See  map  of  Virginia's 
claim  under  charter  of  1609,  in 
Higher  History  of  the  United  States, 
by  H.  E.  Chambers,  p.  84. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  93 

little  later  day  another,  by  men  of  the  same  general  creed,  but 
of  a  broader  culture,  which  in  March,  1629,  was  incorporated 
by  royal  charter  under  the  name  of  the  "Governor  and  Company 
of  Massachusetts  Bay  in  New  England  "  —  a  charter  obtained 
in  order  to  put  at  rest  any  difficulty  as  to  the  title  of  the  colony 
originally  derived  from  a  grant  made  to  it  by  the  Council  of 
New  England.1  After  establishing  the  colony  of  Massachusetts 
Bay,  into  which  the  Plymouth  settlement  was  finally  incor- 
porated, the  Plymouth  Company,  in  June,  1635,  surrendered 
its  charter  to  the  Crown,  and  out  of  the  territory  which  had 
been  granted  to  it  were  carved  the  domains  finally  distributed 
between  the  four  northern  colonies  of  Massachusetts,  Con-  Domains  of 
necticut,  Rhode  Island,  and  New  Hampshire.  Out  of  the 
march  or  borderland,  fixed  between  the  territories  of  the  two 
original  companies  by  the  original  grant  of  1606,  were  carved 
the  domains  of  New  York,  New  Jersey,  and  Pennsylvania,  Domains  of  the 
from  the  last  of  which  was  clipped  the  State  of  Delaware.  In 
this  wise  the  heart  of  North  America,  which  passed  to  the  Eng- 
lish Crown  by  the  right  of  discovery,  was  granted,  as  any  royal 
manor  might  have  been  granted,  first,  to  the  two  trading  com- 
panies created  by  the  charter  of  1606,  and,  after  their  dissolu- 
tion, to  the  thirteen  colonies  that  united  in  the  making  of  the 
Declaration  of  Independence. 

Having  now  examined  the  title  to  the  soil  upon  which  the  Colonies  mere 
English  colonies  in  America  were  planted,  some  reference  must 
be  made  to  the  character  of  the  corporations  created  by  the  Crown. 
Crown  under  whose  ordinances  the  settlers  organized  self- 
governing  communities.  In  England  and  the  United  States,  as 
at  Rome,  all  corporate  organization  rests  upon  state  author- 
ity; and  everywhere  the  ideal  conception  of  the  juristic  person 
is  expressed  in  substantially  the  same  terms.  By  an  English 
court  we  are  told  that  "a  corporation  aggregate  of  many  is 
invisible,  immortal,  and  rests  only  in  intendment  and  consider- 
ation of  law.  It  has  no  soul,  neither  is  it  subject  to  the  imbecil- 
ities of  the  body" ; 2  by  an  American,  that  "a  corporation  is  an 
artificial  being,  invisible,  intangible,  and  existing  only  in  con- 
templation of  law.  Being  the  mere  creature  of  law,  it  possesses 

1  For  the  history  of  these  settle-          2  The  case  of  Button's  Hospital, 
ments,  see  Nar.  and  Crit.  Hist.,  iii,      10  Rep.  32  b. 
219-384- 


94 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Creation  and 
dissolution  of 
corporations. 


Soil  granted 
as  terra  regis. 


Revocation  of 
charter  of 
London  Com- 
pany, 1624; 


and  of  Massa- 
chusetts, 1684. 


only  those  properties  which  the  charter  of  its  creation  confers 
upon  it,  either  expressly  or  as  an  incident  to  its  very  existence."  l 
In  England,  the  consent  of  the  Crown  is  absolutely  necessary 
to  the  erection  of  a  corporation,  either  impliedly  or  expressly 
given.  "A  corporation  may  be  dissolved,  (i)  by  an  act  of  Parlia- 
ment, which  is  boundless  in  its  operations;  (2)  by  the  natural 
death  of  all  its  members,  in  case  of  an  aggregate  corporation; 
(3)  by  surrender  of  its  franchises  into  the  hands  of  the  sover- 
eign, which  is  a  kind  of  suicide;  (4)  by  forfeiture  of  its  charter, 
through  negligence  or  abuse  of  its  franchises,  in  which  case  the 
law  judges  that  the  body  politic  has  broken  the  conditions 
upon  which  it  was  incorporated,  and  thereupon  the  incorpora- 
tion is  void."  2  The  soil  upon  which  the  English  colonies  in 
America  were  planted  was  granted  to  them  as  terra  regis  by  the 
English  Crown;  it  was  not  granted  to  them  as  folkland  by 
the  English  Parliament.8 

The  charters  under  which  the  colonial  governments  were 
organized  were  likewise  royal  grants;  they  were  not  conces- 
sions from  the  English  legislature.  In  contemplation  of  Eng- 
lish law  the  whole  group  of  colonial  governments  in  America 
created  or  confirmed  by  royal  charters  were  mere  corpora- 
tions created  by  the  King,  and  subject  like  all  others  of 
their  kind  to  his  visitorial  power,  and  to  the  power  of  his 
courts  to  dissolve  them  in  a  proper  case  presented  for  the 
purpose.  In  1624  the  charter  of  the  London  Company,  under 
which  the  settlement  at  Jamestown  had  been  made,  was 
brutally  revoked  through  a  legal  judgment,  ''one  of  the  earliest 
of  those  efforts  in  which  the  Stuart  reigns  were  so  fruitful, 
efforts  to  wrest  the  process  of  law  to  the  arbitrary  purposes  of 
the  Crown";  4  and  in  1684  the  charter  of  Massachusetts  was 
canceled  by  the  crown  judges  in  a  proceeding  begun  by  scire 
facias?  Until  some  cause  of  forfeiture  arose,  the  grant,  as 
between  the  Crown  and  the  patentees,  was  irrevocable,  —  it 
being  the  settled  doctrine  of  English  law  that  after  a  grant  of 
corporate  powers  made  by  the  Crown  had  been  once  accepted, 
the  Crown  could  not  resume  the  grant  without  the  consent  of 

1  Dartmouth   College    v.    Wood-          4  Doyle,  English  Colonie sinAmtr- 

ward,  4  Wheat.  636.  ica,  Virginia,  etc.,  182. 

*  Blackstone's  Com.,  i,  461.  6  See  Palfrey's  New  Eng.,  iii,  391- 

*  See  Essays  in  A.  S.  Law,  91-93,  393. 
98-100. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  95 

those  in  whom  its  privileges  had  been  vested.1  The  irrevocable 
rights  thus  acquired  by  the  colonists  as  against  the  Crown  were 
revocable,  however,  at  the  hands  of  the  Parliament.  Under  the 
theory  of  the  English  Constitution,  then  as  now,  "  Its  power  is,  The 
legally  speaking,  illimitable.  It  may  create  and  abolish  and 
change,  at  its  pleasure,  with  or  without  the  assent  of  the  people 
or  corporation  to  be  thereby  affected."  2  Subject  to  this  illim- 
itable power  of  the  Imperial  Parliament,  the  English  Crown 
organized  upon  the  soil  of  the  new  world  a  group  of  colonial 
governments,  whose  differences  of  internal  organization,  and 
whose  greater  or  less  dependence  upon  the  Crown,  distin- 
guished them  broadly  from  each  other. 

Those  colonies  to  which  the  Crown  gave  most  sparingly  the  The  royal 
right  to  regulate  their  own  affairs  are  generally  known  as  royal  Virginia" 
colonies,  —  a  typical  representative  of  which  may  be  found 
in  the  colony  of  Virginia,  whose  early  constitutional  growth 
happily  illustrates  the  general  process  of  evolution  through 
which  the  most  dependent  of  the  English  settlements  in  Amer- 
ica was  rapidly  transformed  from  a  servile  corporation  into 
a  self-governing  state  organized  upon  the  model  of  the  English 
kingdom.    The  government  of  the  London  Company,  whose 
charter  granted  by  James  I  in  1606  contained  the  germs  of  the 
Virginia  constitution,  was  vested  in  a  resident  council  of  thir- 
teen appointed  by  the  Crown,  who  were  authorized  to  choose 
their  own  president,  and  to  govern  "according  to  such  laws, 
ordinances,  and  instructions  as  shall  be  in  that  behalf  given'* 
by  the  King.  The  resident  council  was  subject  to  the  control  of 
the  superior  council  in  England,  which  was  also  subject  to  the 
ultimate  ordaining  power  of  the  King  in  Council.3  In  the  spring  Ordaining 
of  1609  this  complex  system  of  royal  government  was  relaxed  ^Kirf  i 
in  favor  of  local  control  through  a  reorganization  of  the  com-  Council, 
pany,  whereby  the  non-resident  council  was  abolished  and  the 
government  of  the  colony  vested  in  a  single  resident  council 
nominated  by  the  King  in  the  first  instance,  but  vacancies 
in  which  were  afterwards  to  be  filled  by  a  vote  of  the  whole 
company.    Under    this  council  —  which  was  authorized    to 

1  Cf.  Dillon,  Municipal  Corpora-  Council  and  the  law-making  power 

tions,  i,  109,  2d  ed.,  and  cases  cited.  of  the  King  in  Parliament,  see  The 

8  Ibid.  no.  Origin  and  Growth  of  the  Eng.  Const., 

1  As  to  the  distinction  between  i,  496-497. 
the  ordaining  power  of  the  King  in 


96 


THE  AMERICAN  CONSTITUTION 


[Cn! 


choose  a  governor,  and  "to  make,  ordain,  and  establish  all 
manner  of  orders,  laws,  directions,  instructions,  forms  and 
ceremonies  of  government,  and  magistracy,  fit  and  necessary 
for  and  concerning  the  government  of  the  said  colony  "  1  - 
the  Virginian  settlement  became  almost  an  independent  and 
self-governing  community.  In  1612  still  further  concessions 
were  obtained  in  favor  of  the  company;  and  in  1619,  under  its 
instructions,  the  governor  summoned  an  assembly  of  burgesses 
from  the  several  hundreds,  counties,  and  plantations  embraced 
within  its  limits,  which  met  on  the  3Oth  of  July  in  the  chancel 
First  American  of  the  church  at  James  City  or  Jamestown.2  Thus  was  con- 
st^tute^  tne  nrst  representative  legislative  assembly  ever  held 
in  America,  which  was  composed  of  twenty-two  burgesses  from 
the  eleven  several  towns,  plantations,  and  hundreds,  styled 
boroughs.  "The  local  assemblies  in  which  the  colonists  were 
represented  'were  not  formally  instituted,  but  grew  up  by 
themselves,  because  it  was  in  the  nature  of  Englishmen  to 
assemble'";3  or,  as  Hutchinson  has  expressed  it,  "This  year 
[1619]  a  House  of  Burgesses  broke  out  in  Virginia."  4  The 
history  of  the  Virginian  settlement  down  to  this  point  clearly 
illustrates  how  rapidly  even  a  royal  colony  slipped  from  the 
actual  grasp  of  the  Crown,  and  how,  in  its  internal  organiza- 
tion, it  involuntarily  reproduced  the  outlines  of  the  ancient 
Constitution.  At  the  base  of  its  local  organization  we  find  the 
nundred  and  the  shire;  in  the  colonial  governor  we  have  a 
reflected  image  of  the  kingship  ;  in  the  Royal  Council  —  the 
House  of  Lords;  in  the  House  of  Burgesses  —  the  House  of 
Commons.  As  heretofore  pointed  out,  the  foundation  of  the 
whole  fabric  was,  by  the  terms  of  the  charter,  English  law.  In 
spite  of  the  wanton  proceedings  by  which  its  charter  was 
annulled  by  a  judgment  of  the  King's  Bench  in  1624,  and  its 
affairs  transferred  to  the  Privy  Council,  the  Virginian  settle- 
ment survived  as  a  royal  colony,  and  its  government  as  finally 
organized  was  vested  in  a  representative  assembly  chosen  by 
the  people,  in  a  royal  council  nominated  by  the  Crown,  and  in  a 
royal  governor  armed  with  a  veto  power  upon  legislation.  Such 


The  colony  as 


state. 


1  Language  of  the  second  charter. 
See  Charters  and  Constitutions,  part 
ii,  p.  1899. 

1  See  Nar.  and  Crit.  Hist.,  iii,  143. 


*  Maine,  Pop.  Government,  223. 
4  See  Seeley,    The  Expansion  of 
England,  67. 


III.]    EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  97 

was  the  general  structure  of  a  royal  colony,1  a  type  which, 
originally  represented  by  Virginia  alone,  came  to  be  the  pre- 
vailing type  before  the  severance  from  the  mother  country. 

In  the  same  sense  in  which  Virginia  stands  as  the  typical  The  charter 
representative  of  the  royal  colonies,  Massachusetts  stands  as  ^assachu^ 
the  typical  representative  of  the  opposite  class,  —  consisting  setts. 
of  Massachusetts,  Rhode  Island,  and  Connecticut,  —  gener- 
ally known  as  the  charter  colonies,  despite  the  fact  that  their 
foundations  were  laid  without  the  aid  or  sanction  of  charters  at 
all.  As  Tocqueville  has  expressed  it,  "in  general,  charters  were 
not  given  to  the  colonies  of  New  England  till  their  existence 
had  become  an  established  fact.   Plymouth,  Providence,  New 
Haven,  Connecticut,  and  Rhode  Island  were  formed  without 
the  help,  and  almost  without  the  knowledge  of  the  mother 
country."  2   It  may  therefore  be  said  that  their  free  constitu- 
tions were  older  than  their  charters.  The  royal  charter  of  1629, 
that  organized  the  group  of  New  England  settlements  into 
a  corporation  under  the  title  of  the  "  Governor  and  Company 
of  Massachusetts  Bay,"  and  then  authorized  them  to  regulate 
their  own  affairs  as  a  practically  independent  and  self-govern- 
ing community,  was  in  fact  nothing  more  than  a  recognition  of  Her  charter 
a  preexisting  state  of  things.3  The  government  of  the  Massa-  o/pre&dsting 
chusetts  colony  was  vested  by  the  charter  in  the  governor,  conditions, 
deputy  governor,  and  eighteen  assistants,  all  of  whom  were  to 
be  annually  elected  by  the  freemen.    The  only  dependence 
under  which  the  colony  labored  at  the  outset  grew  out  of  the 
fact  that  it  was  subject  to  the  control  of  a  corporation  in  Eng- 
land comprised  of  those  by  whom  its  organization  had  been 
brought   about.     With    the   extinction   of   that   corporation 
through  the  transfer  of  its  charter  to  America,  that  tie  was 

1  See  Chalmer's  Introduction,   i,  and  which,  even  at  the  last,  only 

13-16.  made  use  of  the  royal  authority  to 

8  Democracy  in  America,  i,  45.  complete  the  symmetry  of  the 
Connecticut  has  been  graphically  boundaries  it  had  fairly  won  for  it- 
described  as  "a  state  which  was  self."  See  Johnston,  "The  Genesis 
born,  not  made,  which  grew  up  of  a  New  England  State,"  Johns 
by  natural  accretion  of  townships,  Hopkins  Studies,  1st  series,  xi,  6. 
which  formed  its  own  government,  3  "But,  if  it  be  not  a  paradox  to 
made  its  own  laws,  engaged  in  its  say  so,  the  constitution  of  Massa- 
own  alliances,  fought  its  own  wars,  chusetts  was  older  than  the  existence 
and  built  up  its  own  body,  without  of  the  colony."  Doyle,  English  Colo~ 
the  will  of  King,  Kaiser,  or  Congress,  nies  in  Am.,  Puritan,  etc.,  i,  104. 


98 


THE  AMERICAN  CONSTITUTION 


[CH. 


Charters  of 
Rhode  Island 
and  Connecti- 
cut retained. 


The  proprie- 
tary system  — 
Maryland. 


A  county 
palatine. 


severed,  and  Massachusetts  became,  as  far  as  a  colony  could 
become,  an  independent  commonwealth,  and  continued  to  be 
such  down  to  the  annullment  of  its  charter  in  1684  by  scire 
facias.  By  the  new  charter  granted  it  in  1691  its  original  inde- 
pendence was  much  curtailed  by  a  provision  which  gave  to  the 
Crown  the  right  to  appoint  a  royal  governor  with  an  absolute 
veto  on  legislation.  Both  Rhode  Island  and  Connecticut  pre- 
served their  free  charters  unaltered  down  to  the  Revolution; 
and  even  then  —  so  completely  adequate  were  they  to  all  their 
wants  —  they  did  not  change  them.  The  charter  granted  to 
Connecticut  by  Charles  II  in  1662  was  continued  as  her 
organic  law  until  1818;  while  the  charter  granted  in  1663  to 
Rhode  Island  was  continued  as  her  organic  law  down  to  I842.1 
Between  the  royal  and  charter  governments  stood  a  middle 
class  known  as  proprietary,  which  approached  nearer  to  the 
latter  than  the  former  in  respect  to  their  freedom  from  royal 
control.  The  proprietary  system,  which  grew  out  of  the  idea 
that  the  work  of  colonization  could  be  better  accomplished  by 
private  individuals  than  by  corporate  enterprise,  rested  upon  a 
series  of  grants  made  by  the  Crown  to  one  or  more  proprietors 
of  vast  tracts  of  land  coupled  with  an  almost  unlimited  power 
of  government  and  legislation.  The  first  proprietary  govern- 
ment that  bore  fruit  was  that  of  Maryland,  whose  constitu- 
tional history  begins  with  the  grant,  made  in  1632  to  the  first 2 
Lord  Baltimore,  of  the  tract  of  land  lying  to  the  north  of  that 
actually  settled  by  the  Virginia  Company.  By  that  grant  the 
proprietor  and  his  successors  were  not  only  invested  with  the 
title  to  the  land,  but  they  were  also  authorized  to  make  laws 
with  the  assent  and  advice  of  the  majority  of  the  freemen  or 
their  representatives,  free  from  all  real  dependence  upon  royal 
authority.3  The  details  of  political  organization  were  in  a  great 
measure  confided  to  the  discretion  of  the  proprietor,  whose 
original  conception  of  a  constitution  consisted  of  a  governor, 
council,  and  primary  assembly,  —  a  veritable  Old-English 


1  See  Charters  and  Constitutions, 
part  i,  p.  252;  part  ii,  p.  1603. 

2  Before  the  patent  passed  the 
seals  George  Calvert  died,  and  the 
charter  was  granted  to  his  son  Ce- 
cilius,  second  Lord  Baltimore. 

8  "The    province    was    made   a 


county  palatine;  and  the  proprietary 
was  invested  with  all  the  royal 
rights,  privileges,  and  prerogatives 
which  had  ever  been  enjoyed  by 
any  Bishop  of  Durham  within  his 
county  palatine."  Nar.  and  Crit. 
Hist.,  iii,  520. 


III.]    EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  99 

gemote,  —  in  which  every  freeman  had  the  right  to  represent 

himself  and  to  vote.   Gradually  as  the  primary  plan  grew  in-  Primary  plan 

convenient  it  was  supplanted  by  a  representative  system,  and 

in  1647  the  governing  body  was  divided  into  two  chambers,  the  system. 

lower  consisting  of  an  elective  house  of  burgesses,  the  upper  of 

councillors  and  of  those  speedily  summoned  by  the  proprietor.1 

In  the  grant  to  the  proprietors  of  Carolina  we  find  the  same  . 
absoluteness  of  sovereignty  over  the  land,  and  the  same  free- 
dom from  royal  control,  with  more  careful  provision,  however, 
in  favor  of  the  freeholders,  who  were  endowed  with  a  charter 
right  a  to  participate  in  legislation.  Here  it  was  that  the  pro- 
prietors attempted  to  create  a  political  fabric  through  the  aid 
of  Locke,  —  a  philosopher  of  the  Social  Contract  School,  —  Carolina, 
whose  Fundamental  Constitutions  quickly  illustrated  how  Fundamental 
vain  it  was  to  attempt  to  govern  Englishmen  by  a  paper  con-  Constitutions, 
stitution  3  whose  complicated  and  artificial  details  offended  the 
national  instinct  by  departing  from  the  primitive  tradition. 
When  the  proprietary  system  is  viewed  as  a  whole,  the  great 
landlords  to  whom  the  original  grants  of  land  and  political 
authority  were  made  must  be  looked  upon  as  the  mediums  or 
conduits  through  which  the  Crown  conveyed  to  the  colonists 
the  boon  of  local  self-government.  The  colonies  of  Maryland, 
New  York,  New  Jersey,  New  Hampshire,  Pennsylvania  (in- 
cluding Delaware),  Carolina,  and  Georgia  were  at  the  outset 
proprietary.  But  as  the  proprietors  one  by  one  surrendered 
their  charters  to  the  Crown,  they  were  all  transformed  into 
royal  colonies,  except  Maryland,  Pennsylvania,  and  Dela- 
ware, which  remained  proprietary  down  to  the  Revolution — 
subject  to  the  charter  right  of  their  governors  to  veto  legis- 
lation. 

Having  noted  the  external  relations  of  the  colonies  to  Crown  England's 
and  Parliament,  something  must  be  said  of  their  internal  organ-  a 
ization.   The  statement  has  been  made  already  that  out  of  a  nation. 
union  of  townships  grew  what  was  finally  known  in  England 
as  the  hundred ;  out  of  a  union  of  hundreds  grew  the  modern 

1  As  to  the  history  of  the  early  *  For  the  first  draft  of  the  consti- 
assemblies,  see  Nar.  and  Crit.  Hist.,  tutions,  see  Carroll,  ii,  361 ;  for  the 
iii,  528-531,  536.     See  also  Doyle,  later  modifications,  see  the  Shaftes- 
Virginia,  etc.,  286-291.  bury   Papers,   under  the   years    in 

2  See  Charters  and  Constitutions,  which  they  were  issued, 
part  ii,  p.  1392. 


IOO 


THE  AMERICAN  CONSTITUTION 


[CH. 


Political 
aggregation 
in  America. 


County  and 
township  as 
agents  of  local 
government. 


shire;  out  of  a  union  of  modern  shires  grew  the  English  king- 
dom. The  power  to  subdue  and  settle  a  new  country,  and  then 
to  build  up  a  state  by  that  process  of  aggregation,  constitutes 
the  strength  of  the  English  nation  as  a  colonizing  nation.  By 
that  process,  capable  under  favorable  geographical  conditions 
of  unlimited  expansion,  has  been  built  up  the  Federal  Republic 
of  the  United  States.  "  In  America  ...  it  may  be  said  that  the 
township  was  organized  before  the  county,  the  county  before 
the  state,  the  state  before  the  union."1  In  the  effort  to  re-create 
the  process  through  which  the  English  colonies  in  America  were 
made,  we  must  keep  steadily  in  view  the  process  through  which 
their  prototype  in  Britain  was  made.  The  elements  of  organ- 
ization in  both  were  the  same,  and  the  general  principle  upon 
which  such  elements  coalesced  was  substantially  the  same.  It 
may  be  stated  as  a  general  rule  that  the  English  colony  in 
America,  like  the  English  state  in  Britain,  represented  an 
aggregation  of  counties,  and  that  each  county  represented 
an  aggregation  of  townships.  The  hundred  —  the  intermediate 
division  between  the  township  and  the  county —  appeared  in 
the  structure  of  some  of  the  colonies,  but,  being  unnecessary 
to  the  local  wants  of  the  new  land,  passed  out  of  view.2  In  some 
instances  the  colony  was  formed  by  the  coalescence  of  the  local 
communities  before  a  charter  was  granted ;  in  others  the  charter 
was  granted  first  and  the  colony  then  subdivided  into  districts 
as  the  local  communities  were  organized.  The  fruit  of  both 
processes  was  the  same  —  a  dependent  state  —  subdivided 
into  counties  and  townships  as  the  organs  of  its  local  adminis- 
tration. The  most  striking  fact  that  stands  out  in  the  history 
of  these  local  communities  in  the  new  land  is  that  wherever  the 
one  became  the  active  agent  of  local  administration,  the  other, 
while  it  did  not  cease  to  exist,  became  dormant.  In  America 
the  county  and  the  township  did  not  appear  as  co-working 
agents  dividing  the  duties  of  local  administration  in  anything 

1  Tocqueville,  Democracy  in  Am.,  ordinate  series."  Address  of  Mr. 
i,  49.  "Upon  the  township  was 
formed  the  county,  composed  of 
several  towns  similarly  organized; 
the  state,  composed  of  several  coun- 
ties, and,  finally,  the  United  States, 
composed  of  several  states;  each 
organization  a  body  politic,  with 
definite  governing  powers  in  a  sub- 


Lewis  A.  Morgan,  before  Am.  Assoc. 
for  the  Adv.  of  Science,  Boston, 
Aug.  26,  1880. 

2  The  hundred  existed  in  Vir- 
ginia, Maryland,  and  maybe  else- 
where. See  Ingle,  "Local  Inst.  of 
Va.,"  /.  H.  Studies,  3d  series,  ii-iii, 
41.  Bacon,  Laws  of  Maryland,  1638. 


III.]    EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  IOI 

like  equal  proportions.    In  the  northern  colonies,  where  popu-  in  the  north- 
lation  became  dense,  and  where  the  active  spirit  of  the  English  ^  colonies 

the  township, 

yeoman  and  trader  reproduced  a  system  of  political  life  as  in  the  south- 
closely  organized  as  it  was  vigorous,  the  township  became  the  ern  tne 
active  organ  of  local  administration,  for  the  simple  reason  that  active^gent. 
its  compact  organization  was  better  adapted  than  that  of  the 
county  to  the  local  wants  of  New  England.  In  the  southern  col- 
onies, where  population  was  more  sparse,  and  where  the  south- 
ern planter  reproduced  the  more  tranquil  life  of  the  English 
country  gentleman  who  had  little  or  nothing  to  do  with  the 
life  of  towns,  the  county  became  the  active  organ  of  local 
administration,  for  the  reason  that  it  satisfied  all  of  the  political 
wants  of  a  rural  population.1   While  the  township  was  thus 
overshadowed  in  the  southern  colonies  by  county  organization, 
the  New  England  county  maintained  nothing  more  than  a 
shadowy  existence  as  a  local  district  for  certain  judicial  pur- 
poses.2 In  the  middle  colonies  the  two  opposing  systems  fought 
for  the  mastery,  and  the  result  was  a  composite  system  that  Composite 
approached  nearer  than  either  to  the  original  model  by  divid-  JjJ^jJl m 
ing  between  the  town  and  county,  in  something  like  equal  colonies. 
proportions,  the  duties  of  local  government. 

During  the  ten  centuries  that  intervened  between  the  Teu-  The  township 
tonic  conquest  and  settlement  of  Britain  and  the  making  of  the 
English  settlements  in  America,  the  mark,  which  reappeared 
in  Britain  as  the  tun  or  township,  passed  through  a  notable 
transformation.    In  the  process  of  English  feudalization  the 
township  was  transformed  into  the  manor  of  the  lord,  and  the 
once  free  townsmen  became  the  lord's  tenants,  while  the  greater 
part  of  the  ancient  jurisdiction  of  the  tun-moot  passed  to  the 
manorial  courts.    And  more  than  this,  the  township  in  the 
home  land  became  involved  in  ecclesiastical  as  well  as  feudal 
relations.   As  a  division  in  the  territorial  organization  of  the 
church,  the  township  became  the  parish,  and  as  such  its  bound- 
aries were  used  to  define  the  jurisdiction  of  a  single  priest:  "all  The  parish 
business  that  is  not  manorial  is  dispatched  in  vestry  meetings,  and 
which  are,  however,  primarily  meetings  of  the  township  for 

1  Mr.  Freeman,  in  writing  to  the  There  the  town  was  the  thing  when 

author   on   this    subject,  said:    "I  the  city  had  not  swallowed  it  up." 

found  in  Virginia  people  spoke  of  the  2  See  Washburn,  Judicial  Hist,  of 

county  as  they  do  here.    In    New  Mass.,  31,  note  I. 
England   the  county  seemed  lost. 


IO2 


THE  AMERICAN  CONSTITUTION 


[CH. 


Townships  in 
New  England. 


Manors  in 
Maryland. 


church  purposes."  1  In  that  way  the  tun-moot  had  ceased  to 
exist  as  a  single  assembly,  and  its  jurisdiction  had  been  split 
up  and  absorbed  by  the  parish  vestry  and  manorial  courts 
long  before  the  emigration  to  America  began.  It  is  therefore  a 
very  remarkable  fact  in  the  history  of  institutions  that  when 
the  settlers  of  New  England  reproduced  the  township  in  the 
new  world,  they  should  have  reproduced  it  in  its  original 
form,  unfettered  by  the  feudal  and  ecclesiastical  restraints  in 
which  it  had  been  encaged  for  centuries.  As  a  brilliant  Ameri- 
can scholar  has  expressed  it,  the  colonists  "were  severed  now 
from  church  and  from  aristocracy.  So  they  had  but  to  discard 
the  ecclesiastical  and  lordly  terminology,  with  such  limitations 
as  they  involved,  and  reintegrate  the  separate  jurisdictions 
into  one,  —  and  forthwith  the  old  assembly  of  the  township, 
founded  in  immemorial  tradition,  but  revivified  by  new 
thoughts  and  purposes,  gained  through  ages  of  political  train- 
ing, emerged  into  fresh  life  and  entered  upon  a  more  glorious 
career." 2  The  government  of  the  New  England  town,  like  that 
of  the  Old-English  township,  is  vested  in  the  town-meeting;  and 
"a  New  England  town-meeting  is  essentially  the  same  thing 
as  the  Homeric  ayoprj,  the  Athenian  e/c/cX^crta,  the  Roman 
comitia,  the  Swiss  Landesgemeinde,  the  English  folk-moot."  3 
The  fact  that  the  township,  stripped  of  its  feudal  aspect  as  the 
manor,  and  of  its  ecclesiastical  aspect  as  the  parish,  reappeared 
in  its  primitive  form  upon  the  soil  of  New  England,  must  not, 
however,  lead  to  the  inference  that  it  did  not  elsewhere  appear  in 
each  of  its  discarded  characters.  The  evidence  as  to  the  origin 
and  structure  of  old  Maryland  manors  is  of  a  very  clear  and 
satisfactory  character.  There  even  the  court  baron  was  not 
wanting.  From  Bozeman  we  learn  that  "one  or  two  rare  in- 
stances occurred  of  the  holding  of  both  courts  baron  and 
courts  leet  in  two  distinct  manors."  4  In  St.  Clement's  manor 


1  Stubbs,  Const.  Hist.,  i,  85. 

8  Fiske,  American  Political  Ideas, 
49. 

*  Freeman's  "Int.  to  Am.  Inst. 
Hist.,"  J.  H.  Studies,  1st  series,  i, 
16. 

4  History  of  Maryland,  ii,  581. 
Therein  we  are  told  that  "a  court 
baron  was  held  at  the  manor  of 
St.  Gabriel  on  the  7th  of  March, 


1656,  by  the  steward  of  the  lady  of 
the  manor  when  one  Martin  Kirke 
took  of  the  lady  of  the  manor  in  full 
court,  by  delivery  of  the  said  stew- 
ard, by  rod  according  to  the  custom 
of  the  said  manor,  one  messuage, 
having  done  fealty  to  the  lady,  was 
thereby  admitted  tenant."  (MS. 
extracts  from  the  records.) 


III.]    EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  103 

a  court  leet  was  held  at  intervals  between  1659  and  1672,  as 
appears  from  its  manuscript  records  now  in  the  possession  of 
the  Maryland  Historical  Society.1    The  evidence  is  equally 
clear  as  to  the  existence  in  New  York  of  the  manorial  system  and  in 
in  its  Dutch  aspect.2  In  Virginia  the  colony  was  first  created  as      w 
an  entirety  and  then  subdivided  into  self-governing  districts 
as  rapidly  as  they  were  demanded  by  the  growth  of  popula- 
tion. When  the  county  had  finally  become  crystallized,  it  was 
divided  into  parishes.  While,  as  a  general  rule,  the  parish  was 
a  division  of  the  county  for  religious  purposes,  its  governing 
body,  the  vestry,  had  considerable  authority  in  civil  affairs.  Virginia 
The  vestrymen  were  originally  elected  by  the  parishioners  pans  *** 
themselves  under  the  supervision  of  the  sheriff;  but  as  they 
were  chosen  for  an  indefinite  term,  and  as  it  was  provided  by 
statute  in  1661-62  that,  in  the  event  of  the  death  or  removal 
of  any  one  of  them,  his  place  should  be  filled  by  the  vestry 
itself,  the  governing  body  of  the  Virginia  parish  ceased  to 
be  representative,  and  like  its  English  parent,  hardened  into 
a  close  corporation.3 

Such  was  the  general  nature  of  the  process  of  reproduction  America's 
that  resulted  in  the  creation  of  the  thirteen  English  colonies  in  tios^  J£ 
America,  which,  upon  the  severance  from  the  mother  country,  ical  science. 
rose  to  the  full  stature  of  sovereign  states.    In  coming  into 
being  they  originated  a  new  principle  of  constitutional  law, 
America's  first  contribution  to  the  Science  of  Politics.  As  the 
colony  was  created  by  a  royal  charter  that  called  into  being 
a  subordinate  law-making  body,  that  body  could  neither  vio- 
late the  terms  nor  transcend  the  powers  of  the  instrument  to 
which  it  owed  its  existence.  In  colonial  times  "questions  some- 
times arose  .  .  .  whether  the  statutes  made  by  these  assemblies 
were  in  excess  of  the  powers  conferred  by  the  charter;  and,  if 

1  These  records,  presented  to  the  Town  and  County  Govt.,  43,  48; 
society  by  Col.  B.  U.  Campbell,  are  Ingle,  Local  Institutions  of  Fa.,  Si- 
printed  as  an  appendix  to  Old  Mary-  83.  For  the  history  of  the  hard- 
land  Manors,  31-38.  ening  process  in  England,  see  Sir  T. 

1  See  "Dutch  Village  Commun-  Erskine  May,  Const.  Hist.,  ii,  461. 

ities  on  the  Hudson  River,"  Elting,  A  partial  remedy  for  that  abuse  of 

/.  H.  Studies,  4th  series,  i,  12-16;  parochial  government  in    England 

O'Callaghan,  Hist,  of  New  Nether-  was   supplied   in    1831    by  Sir  J. 

lands,  i,  320.  Hobhouse's  Vestry  Act,   I   and  2 

«  See  Rev.  P.  Slaughter's  Hist,  of  Will.  IV,  c.  60. 
Bristol  Parish,  2d  ed.,  4;  Channing, 


104 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Invalidity 
of  colonial 
statutes. 


State  constitu- 
tions of  1776. 


Earliest  cases 
declaring  state 
statutes  void. 


the  statutes  were  found  in  excess,  they  were  held  invalid  by  the 
courts,  that  is  to  say,  in  the  first  instance  by  the  colonial 
courts,  or,  if  the  matter  was  carried  to  England,  by  the  Privy 
Council."  l  After  the  severance  from  the  mother  country,  that 
power  to  annul  a  statute,  originally  vested  in  the  Privy  Coun- 
cil, was  simply  assumed  by  the  supreme  courts  of  the  eman- 
cipated states.  On  May  10,  1776,  the  Continental  Congress 
recommended  to  the  several  conventions  and  assemblies  of  the 
colonies  the  establishment  of  independent  governments  "for 
maintenance  of  internal  peace  and  the  defense  of  their  lives, 
liberties,  and  properties" ; 2  and  before  the  end  of  that  year  the 
greater  part  of  the  colonies  had  adopted  written  constitutions 
in  which  the  powers  of  the  state  were  restrained  by  a  set  of 
limitations  in  favor  of  the  rights  of  the  citizen  as  those*  rights 
were  then  defined  in  English  constitutional  law.  But  no  one  of 
those  constitutions  gave  to  the  supreme  court  of  a  state,  in 
express  terms,  the  right  to  annul  an  invalid  enactment.  The 
judges  established  that  right  by  a  process  of  reasoning  of  which 
the  following  is  perhaps  the  earliest  example.  In  Com.  v. 
Caton,3  a  case  that  came  before  the  Court  of  Appeals  of  Vir- 
ginia in  November,  1782,  Wythe,  J.,  said:  "Nay,  more,  if  the 
whole  legislature,  an  event  to  be  deprecated,  should  attempt  to 
overleap  the  bounds  prescribed  to  them  by  the  people,  I,  in 
administering  the  public  justice  of  the  country,  will  meet  the 
united  powers,  at  my  seat  in  this  tribunal;  and,  pointing  to  the 
constitution,  will  say  to  them  here  is  the  limit  of  your  author- 
ity; and  hither  shall  you  go,  but  no  further."  Rhode  Island 
retained  the  charter  granted  to  her  in  1663  as  her  constitution 
down  to  1842;  and  in  Trevett  v.  Weeden  an  act  was  declared 
void  in  1786  because  it  impaired  the  right  of  trial  by  jury 
guaranteed  by  that  charter.4  In  Bayard  v.  Singleton,6  decided 
by  the  Supreme  Court  of  North  Carolina  in  1787,  an  act  was 
likewise  annulled  because  destructive  of  the  right  of  trial  by 
jury;  and  in  Bowman  v.  Middleton,6  decided  by  the  Supreme 
Court  of  South  Carolina  in  1792,  it  was  held  that  an  act  passed 
by  the  colonial  legislature,  in  1712,  was  ipso  facto  void  because 

1  Bryce,  The  Am.  Commonwealth,          4  See  Cooley,  Const.  Lim.,  p.  26, 
i,  243.  note  i,  for  comments  on  that  case. 

8  See  Charters  and  Constitutions,          6  i  N.  C.  42  (i  Martin,  pt.  i,  p. 

i,  3-  48). 

»  4  Call  (Va.),  5-21.  «  i  Bay,  252. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  105 

in  contravention  of  Magna  Carta.  Thus  the  principles  became  Constitutional 
fundamental  in  American  constitutional  law  (i)  that  every  {^f^^on 
state  legislature  is  endowed  by  its  very  nature  with  all  the  power, 
omnipotence  of  the  English  Parliament,  save  in  so  far  as  that 
omnipotence  is  restrained  by  the  express  terms  of  constitu- 
tional limitations ;  1  (2)  that  whenever  the  legislature  of  a  state 
violates  such  limitations,  its  supreme  court  possesses  the  inher- 
ent and  implied  power  to  annul  its  act  for  that  reason.  A  writ- 
ten constitution,  as  a  complete  system  of  limitations  upon  the 
powers  of  a  state  to  invade  the  "rights  of  man,"  is  an  invention 
that  arose  out  of  the  politics  of  the  French  Revolution ;  but  the 
right  of  a  court  to  annul  the  act  of  a  state  when,  in  its  judg- 
ment, the  limitations  imposed  by  the  constitution  have  been 
exceeded,  is  purely  an  American  invention.  That  invention,  Invention 
originating  with  the  states,  as  above  set  forth,  was  lifted  into 
a  higher  sphere  when  the  existing  Federal  Constitution  was 
adopted.  Without  any  express  authority  whatever  from  that 
Constitution,  the  Supreme  Court  of  the  United  States,  by 
repeating  the  process  of  reasoning  originally  employed  by 
Chancellor  Wythe,  reached  the  conclusion,  for  the  first  time  in 
the  world's  history,  that  a  judicial  tribunal  can  put  the  stamp 
of  nullity  on  a  national  law  whenever  in  its  judgment  it  exceeds 
the  limits  of  the  national  Constitution. 

The  fact  that  the  soil  upon  which  the  English  colonies  in  American 
America  were  planted  came  to  them  through  royal  grants,2  the  cobnTal°rights 
fact  that  every  form  of  political  organization  established 
thereon  rested  upon  royal  charters,  were  the  foundation-stones 
upon  which  the  colonists  gradually  built  up,  in  the  light  of 
their  actual  experience,  their  theory  of  the  political  relations 
that  bound  them  to  the  mother  country.  Their  rights  as  Eng- 
lishmen, endowed  with  "all  the  liberties,  franchises,  and  im- 
munities of  free  denizens  and  natural  subjects,"  flowed  from 
their  charters,  which,  as  between  themselves  and  the  Crown, 
were  irrevocable  though  not  non-forfeitable  contracts.  The 
earliest  form  of  direct  legislative  control  to  which  any  of  the 
colonists  were  subjected,  in  the  form  of  ordinances  or  instruc- 

1  See  Cooley's  Const.  Lim.,  107  ies  was  not  in  the  people  of  England 

(5th  ed.),  and  cases  cited;  Mangan  v.  nor  in  the  state,  but  in  the  Crown, 

State,  76  Ala.  60;  Davis  v.  State,  and  descended  with  it.  The  Crown 

68  Ala.  58.  alone  could  sell  or  give  away  these 

8  "The  title  to  the  English  colon-  lands."  Nar.  and  Crit.  Hist.,  vi,  3. 


io6 


THE  AMERICAN  CONSTITUTION 


[Cn. 


The  Crown 
regarded  as 
the  only  tie 
that  bound 
the  colonies 
to  England. 


English 
theory  of 
colonial 
rights. 


tions  for  their  government,  emanated,  not  from  the  law-making 
power  of  the  King  in  Parliament,  but  from  the  King  in  Council. 
And  at  a  later  day  when  the  colonial  assemblies  began  the 
work  of  legislation  on  their  own  account,  the  validity  of  their 
enactments  depended,  not  upon  the  approval  of  the  English 
Parliament,  but  upon  that  of  the  royal  governor,  who  stood  as 
the  ever-present  representative  of  his  royal  master.  With  the 
founding  of  the  colonies,  and  with  the  organization  of  their 
political  systems,  the  Crown  had  everything  to  do,  the  Parlia- 
ment practically  nothing.  Apart  from  the  control  which  it  had 
exerted  from  the  beginning  over  their  external  affairs  in  mat- 
ters of  trade  and  navigation,  the  colonies,  prior  to  the  latter 
part  of  the  eighteenth  century,  had  not  been  drawn  within  the 
widening  circle  of  its  imperial  authority.  The  whole  tendency 
of  their  early  experience  was  to  lead  the  colonies  to  believe 
that  the  Crown  was  the  only  tie  that  bound  them  to  the 
mother  country;  that  to  each  one  of  them  the  King  stood  in 
the  direct  relation  of  chief  executive ;  that  to  him  alone  duties 
were  due ;  and  that  the  only  proper  mediums  of  communica- 
tion between  the  Crown  and  colonies  were  the  colonial  parlia- 
ments. In  their  local  legislatures  the  colonists  had  learned 
how  to  tax  themselves,  and  how  to  regulate  their  home  affairs 
through  laws  of  their  own  making.1  Losing  sight  of  the  fact 
that  England  had  grown  into  an  empire  since  the  work  of 
colonization  began,  the  colonists  clave  to  the  earlier  concep- 
tion which  regarded  the  home  Parliament  simply  as  the  legis- 
lative organ  of  the  United  Kingdom.  As  such  they  held  that 
it  had  no  right  to  invade  the  jurisdictions  of  their  colonial 
assemblies  in  order  to  legislate  directly  upon  their  internal 
concerns. 

While  remoteness  and  self-interest  were  alike  intensifying 
in  the  colonial  mind  this  reasonable  yet  narrow  conception, 
the  growth  of  English  dominion  was  leading  English  states- 
men at  home  to  elaborate  a  theory  which,  in  the  gorgeous 
language  of  Burke,  clothed  the  English  Parliament  with  an 
"imperial  character,  in  which,  as  from  the  throne  of  Heaven, 
she  superintends  all  the  several  inferior  legislatures,  and 
guides  and  controls  them  all  without  annihilating  any." 2  In  the 


1  That  is  well  put  by  Fiske  in  The 
Critical  Period,  63. 


1  Speech  on  American  taxation, 
April  19,  1774. 


III.]     EVOLUTION  OF  THE  TYPICAL  AMERICAN  STATE  107 

hands  of  a  practical  tax-loving  statesman  like  Grenville  this 
imperial  theory  was  not  confined  to  mere  supervision;  in  such 
hands  it  was  held  to  mean  that  the  Imperial  Parliament  could 
at  any  moment  override  the  acts  of  the  colonial  assemblies, 
without  consulting  their  wishes  at  all,  and  tax  and  legislate  for 
the  people  of  Massachusetts  and  Virginia  just  as  it  could  for 
the  people  of  Kent  and  Middlesex.    Out  of  the  conflict  that  Out  of  the 
finally  arose  between  the  English  and  colonial  theories  as  to  the  Jh^ar  o^The 
practical  omnipotence  of  the  Imperial  Parliament  over  self-  Revolution, 
governing  communities  beyond  the  four  seas,  grew  the  war  of 
the  Revolution,  and  the  severance  of  the  colonies  from  the 
mother  country.1 

1  See    Green's  statement  of   the  that  stated  by  Turgot,  who  said  that 

conflicting  theories,  Hist,  of  the  Eng.  "  colonies  are  like  fruits,  which  cling 

People,  iv,  226-230.  While  the  con-  to  the  tree  only  till  they  ripen.   As 

flict  of  theory  as  to  the  jurisdic-  soon  as  America  can  take  care  of 

tion  of  the  Imperial  Parliament  was  itself,  it  will  do  what  Carthage  did." 

the  visible  and  technical  cause  of  (Euvresde  Jlf.r«rg0f(Paris,i8o8-ll), 

separation,  was  not  the  real  cause  ii,  19,  66. 


CHAPTER  IV 


FEDERALISM  AS  A  SYSTEM   OF  GOVERNMENT 


Effects  of 
geography 
on  federation. 


Britain  and 

America 

contrasted. 


A  federal 
union  defined. 


THE  physiography  of  North  America  predetermined  the  fact 
that  the  thirteen  emancipated  colonies  were  to  unite  in  a 
federal  and  not  in  a  consolidated  state.  The  group  of  colonial 
commonwealths,  as  they  appear  upon  our  Atlantic  seaboard 
toward  the  close  of  the  eighteenth  century,  were,  in  internal 
organization,  a  substantial  reproduction  of  that  older  group 
of  heptarchic  kingdoms  as  they  appear  in  Britain  in  the  ninth. 
And  yet,  despite  that  likeness,  the  younger  group  in  their 
efforts  at  union  were  unable  to  look  to  the  older  group  for  light 
or  guidance,  for  the  reason  that  the  widely  different  geo- 
graphical conditions  by  which  they  were  respectively  sur- 
rounded had  prescribed  for  each  a  widely  different  destiny. 
Confined  within  the  narrow  and  impassable  bounds  of  an 
island  world,  it  became  the  manifest  destiny  of  the  English 
states  in  Britain,  advancing  in  the  path  of  political  aggrega- 
tion, to  coalesce  in  the  formation  of  a  single  consolidated  king- 
dom. Situated  on  the  shores  of  an  almost  boundless  continent, 
it  became  the  manifest  destiny  of  the  English  states  in  America, 
advancing  in  the  path  of  political  confederation,  to  unite  in 
the  flexible  bonds  of  a  federal  system  capable  of  almost  unlim- 
ited expansion.1 

In  order  the  more  clearly  to  comprehend  the  process  through 
which  federalism  has  finally  taken  on  in  America  its  most 
perfect  form,  it  will  be  helpful  to  glance  for  a  moment  at  its 
history  as  a  system  of  government  prior  to  the  making  of  its 
last  and  most  successful  experiment.  A  federal  union  may  be 
defined  to  be  the  joining- together  of  sovereign  states  under  any 
form  of  confederation  more  permanent  than  a  mere  alliance, 
wherein  each  state  surrenders  a  part  of  its  sovereignty  for  the 
common  good  of  all,  without  the  surrender  of  its  individual 
right  to  regulate  such  internal  affairs  as  concern  it  only.  It  is 
the  very  opposite  of  that  kind  of  union  which  is  brought  about 
1  See  Fiske,  Am.  Political  Ideas,  chap.  iii. 


IV.]     FEDERALISM  AS  A  SYSTEM  OF  GOVERNMENT  109 

by  the  incorporation  or  fusion  of  two  or  more  states  or  cities 
into  a  single  body  with  equal  rights  common  to  all.  The  ideal 
of  a  perfect  federal  government  may  be  defined  to  be  one 
which  is  but  a  single  state  in  all  matters  that  concern  the 
federal  body  as  a  whole,  and  yet  a  group  of  states  perfectly 
independent  in  all  matters  which  concern  each  member  of 
the  group  as  a  local  self-governing  community.  To  the  ideal  An  ideal  federal 
federal  government,  the  federal  commonwealths  that  have  «overnment- 
actually  existed  in  history  can  only  be  regarded  as  more  or 
less  close  approximations.    Out  of  the  entire  group  of  such 
commonwealths  four  have  been  specially  commended  for  study 
to  students  of  the  history  of  federal  government,  for  the  reason 
that  their  constitutions  illustrate  the  closest  approaches  that 
have  so  far  been  made  to  the  perfect  federal  ideal.  These  four  Four  notable 
are  the  Achaian  League  (B.C.  281-146),  the  Confederation  of  the  aPProaches- 
Swiss  Cantons  (from  1291);  the  Seven  United  Provinces  of 
the  Netherlands  (1579-1795);  and  the  United  States  of  North 
America  (from  I789).1   In  considering  the  internal  structures 
of  these  more  perfect  federal  systems  a  sharp  distinction  must 
be  drawn  between  those  in  which  the  central  power  deals  only 
with  the  government  of  states  as  states,  and  those  in  which  the 
central  power  acts  directly  upon  all  citizens.  According  to  the 
manner  in  which  the  central  power  exercises  its  special  func- 
tions federal  governments  are  usually  divided  into  two  classes. 
Those  in  which  the  central  power  is  only  authorized  to  issue 
requisitions  to  the  state  government  for  each  to  carry  out  are 
known  as  "confederated  states,"  while  those  which  are  sover-  Confederated 
eign  within  their  spheres,  and  which  can  enforce  such  sover-  s 
eignty  directly  upon  every  citizen,  are  known  as  "composite  Composite 
states." »  states' 

When  we  turn  to  the  Mediterranean  world  in  which  the  Sci-  The  Greek 
ence  of  Politics  was  born,  we  there  find  the  dominant  political 
idea  embodied  in  the  independent  city  —  the  city-common- 
wealth —  which  stood  toward  all  other  cities  as  a  sovereign 

1  See  Freeman,  History  of  Federal  ville  says  the  government  of  the 

Government,  i,  5,  6,  n,  12,  and  United  States  is  neither  exactly 

notes.  national  nor  exactly  federal:  it  is 

9  As  to  that  distinction,  see  J.  S.  a  novel  thing,  —  "un  gouvernement 

Mill,  Rep.  Govt.,  p.  301;  Prof.  Bar-  national  incomplete  See  upon  the 

nard,  Lectures  on  American  War,  whole  subject,  The  Federalist,  nos. 

Oxford,  1861,  pp.  68-72.  Tocque-  xxxviii,  xxxix. 


no 


THE  AMERICAN  CONSTITUTION 


[CH. 


Aristotle's 
"  Constitu- 
tions." 


The  Greece 
of  Polybios. 


Achaian 
League. 


state  whose  internal  affairs  were  regulated  by  its  own  domestic 
constitution.  Such  was  the  only  conception  of  the  state  with 
which  Aristotle,  the  acknowledged  founder  of  political  sci- 
ence,1 was  acquainted;  and  in  obedience  to  his  practical 
temper  he  made  a  collection  called  the  "  Constitutions," 2  sup- 
posed to  have  contained  a  description  of  the  codes  of  a  hundred 
and  fifty-eight  city-states  bounded  by  their  own  walls,  and  like 
the  mediaeval  republics  of  Italy,  living  for  centuries  in  sight  of 
each  other  without  a  thought  of  union  except  through  conquest 
of  the  weaker  by  the  stronger.  Not  until  the  Macedonian 
supremacy  raised  up  a  military  empire  on  their  own  frontier, 
stronger  and  far  more  dangerous  than  that  of  Persia,  did  the 
statesmen  of  Greece  learn  the  necessity  of  confederation  for 
the  safety  of  their  isolated  and  self-governing  city  commun- 
ities. Of  such  unions  the  two  most  celebrated  were  the  Achaian 
and  the  ^tolian  leagues.  The  scholars  who  have  in  our  own 
time  passed  beyond  the  Greece  of  Thucydides  (471-400  B.C.) 
to  the  Greece  of  Polybios  3  (about  203-121  B.C.),  who  have 
passed  beyond  the  period  in  which  the  independent  city-com- 
monwealth was  the  dominant  political  idea  into  the  less  bril- 
liant period  of  Hellenic  freedom  occupied  by  the  history  of 
Greek  federalism,  have  at  last  put  before  us  in  a  tangible  form 
the  history  of  at  least  one  ancient  federal  league  whose  internal 
structure  entitles  it  to  be  ranked  among  "composite  states." 
Careful  analysis  of  the  constitution  of  the  Achaian  League 
seems  to  have  clearly  established  the  fact  that  its  government 
was  really  national;  that  there  was  an  Achaian  nation,  with  a 
national  chief,  a  national  assembly,  and  national  tribunals ;  that 
every  Achaian  citizen  owed  a  direct  allegiance  to  the  central 
authority  as  a  citizen  of  the  league  itself,  and  not  merely  of  one 
of  the  cities  that  composed  it.4  The  supreme  power  was  vested 


1  See   Pollock,   Hist.   Science  of 
Politics,  i. 

*  The    fragments    that    remain 
have  been  collected  and  annotated 
by  Neumann,  and  are  contained  in 
Bekker's   Oxford   edition   of   Aris- 
totle. 

*  Mr.  Freeman,  after  referring  to 
Grate's  depreciation  of  The  Greece  of 
Polybios  (xii,  527-530),  laments  the 
fact  that  his  great  work  "lies almost 


untouched  in  '  our  universities." 
Fed.  Govt.,  pp.  219-227,  note  i.  For 
Mommsen's  estimate  of  Polybios 
as  an  historian,  see  Romische  Ge- 
schichte,  ii,  427. 

4  "The  Achaian  League  was,  in 
German  technical  language,  a  Bun- 
desstaat,  and  not  a  mere  Staaten- 
bund."  Freeman,  Hist,  of  Fed.  Govt., 
i,  259,  citing  Helwing,  237. 


IV.]     FEDERALISM  AS  A  SYSTEM  OF  GOVERNMENT  III 

in  a  single  primary  assembly  that  met  at  stated  intervals,  and 
in  a  general  (SrparT/yds)  elected  for  a  stated  term  like  the 
American  President,  who  was  assisted  by  ten  magistrates,  who 
formed  around  him  a  permanent  cabinet  or  council.  Although 
the  central   assembly  did   undoubtedly  levy  federal   taxes  Federal  taxes 
(at  Koival  eun^opai),1  the  probabilities  are  that  such  taxes  a.nd  re(*uisi- 
were  collected  not  by  federal  tax  collectors,  but  through  the 
requisition  system  under  which  each  city  was  permitted  to 
raise  its  quota  through  its  own  local  machinery.   The  Achaian 
League  can  therefore  only  hold  its  place  among  "  composite 
states  "  by  virtue  of  the  fact  that  its  national  government  acted 
directly  on  the  citizen,  and  not  by  reason  of  the  fact  that  it  had 
passed  beyond  the  requisition  stage  to  that  in  which  a  federal 
government  collects  its  taxes  through  the  direct  agency  of  its 
own  officers.  And  yet,  whatever  general  resemblance  may  be 
traced  between  the  Achaian  League  (the  product  of  a  union 
of  city-commonwealths)  and  the  United  States  (the  product  of 
the  union  of  modern  states),  the  fact  remains  that  the  his-  No  conscious 
tory  of  the  one  had  no  direct  or  conscious  influence  upon  the  ^e^en°n 
making  of  the  other.   In  1787  the  history  of  Greek  federalism  federalism. 
was  really  a  sealed  book.    Such  scanty  knowledge  as  the 
founders  did  possess  seems  to  have  been  chiefly  drawn  from  the 
little  work  of  the  Abb6  Mably,  "  Observations  sur  1'histoire  de 
Grece."2   The  "History  of  Greek  Federations,"  first  written 
by  Edward  A.  Freeman,  did  not  appear  until  the  publication 
of  the  first  volume  of  his  great  "History  of  Federal  Govern- 
ment" in  1863.    The  lack  of  knowledge  on  the  subject  is 
frankly  confessed  by  Madison  and  Hamilton  who  have  told  us  in 
the  "  Federalist "  3  that "  could  the  interior  structure  and  regular 
operation  of  the  Achaian  League  be  ascertained,  it  is  probable 
that  more  light  might  be  thrown  by  it  on  the  science  of  federal 
government  than  by  any  of  the  like  experiments  with  which 
we  are  acquainted."  The  only  federal  governments  with  whose  Founders  only 
internal  organizations  the  builders  of  our  Federal  Republic  were 
really  familiar,  and  whose  histories  had  any  practical  effect  leagues. 
upon  their  work,  were  those  that  had  grown  up  between  the 
Low-Dutch  communities  at  the  mouth  of  the  Rhine,  and 
between  the  High-Dutch  communities  in  the  mountains  of 

1  Pol.,  iv,  60.  »  No.  xviii. 

*  See  Federalist,  nos.  xix,  xx. 


112 


THE  AMERICAN  CONSTITUTION 


[Cn. 


All  operated 
on  states  or 
cities,  not  on 
individuals. 


Modern  state 
as  the  nation. 


Teutonic  tribes 
gathered  into 
nations. 


Switzerland,  and  upon  the  plains  of  Germany.1  Down  to  the 
making  of  the  second  Constitution  of  the  United  States  the 
Confederation  of  Swiss  Cantons,  the  United  Provinces  of  the 
Netherlands,  and  the  German  Confederation  really  represented 
the  total  advance  made  by  the  modern  world  in  the  structure 
of  federal  governments.  Such  advance  was  embodied  in  the 
idea  of  a  federal  system  made  up  of  a  union  of  states,  cities,  or 
districts,  representatives  from  which  composed  a  single  federal 
assembly  whose  supreme  power  could  be  brought  to  bear  not 
upon  individual  citizens,  but  only  upon  states  or  cities  as  such. 
The  fundamental  principle  upon  which  all  such  fabrics  rested 
was  the  requisition  system,  under  which  the  federal  head  was 
simply  endowed  with  the  power  to  make  for  federal  purposes 
requisitions  for  men  and  money  upon  the  states  or  cities  com- 
posing the  league,  while  the  states  alone,  in  their  corporate 
capacity,  possessed  the  power  to  enforce  them. 

During  the  immense  interval  that  divides  the  history  of  the 
ancient  Greek  leagues  from  that  of  the  comparatively  modern 
Teutonic  leagues,  the  ancient  conception  of  the  state  as  a  city- 
commonwealth  gave  way  to  the  modern  conception  of  the 
state  as  a  nation  occupying  a  definite  area  of  territory  with 
fixed  geographical  boundaries,  the  state  as  known  to  modern 
international  law.2  That  conception  gradually  arose  out  of  the 
settlements  made  by  the  Teutonic  nations  upon  the  wreck  of 
the  Roman  Empire.  At  the  time  Tacitus  wrote,  the  typical 
Teutonic  tribe  (civitas)  was  a  distinct  commonwealth,  the 
largest  and  highest  political  aggregate.  Not  until  nearly  a 
century  later  were  these  scattered  tribes  gathered  into  larger 
wholes — into  nations.3  When  that  stage  was  reached,  when 
tribes  were  fused  into  the  higher  political  unit,  the  nation,  the 
primitive  Teutonic  conception  of  the  state,  widened  into  its  full 
and  final  development.  But  another  stage  of  growth  had  yet  to 
be  passed  before  the  new  unit,  which  thus  arose  out  of  an  aggre- 


1  See  Federalist,  nos.  xix,  xx. 

2  Taylor,     International     Public 
Law,  chap,  ii,  "The  Modern  State 
as  the  Nation." 

1  Zeuss,  Die  Deutschen  und  die 
Nachbarstamme,  pp.  303,  304.  In 
the  Mediterranean  peninsulas  the 
product  of  a  union  of  tribes  was  a 


city-commonwealth,  —  in  Teutonic 
lands  the  product  of  a  union  of  tribes 
was  not  a  city  at  all,  but  a  nation. 
"The  Teutons  passed  from  the  tribal 
stage  into  the  national  stage  with- 
out ever  going  through  the  city 
stage  at  all."  Comparative  Politics, 

101. 


IV.]     FEDERALISM  AS  A  SYSTEM  OF  GOVERNMENT  113 

gation  of  tribes,  reached  the  full  modern  conception  of  the 
state  as  a  nation  possessing  a  definite  portion  of  the  earth's 
surface  with  fixed  geographical  boundaries.  The  fact  must  be 
borne  in  mind  that  the  primary  bond  uniting  the  people  who 
composed  a  Teutonic  nation  was  a  personal  one;  the  national 
king  was  first  among  the  people,  the  embodiment  of  the  na- 
tional being,  but  not  the  king  of  a  particular  area  or  region  of 
territory.  The  idea  of  sovereignty  was  not  associated  in  the 
Teutonic  mind  with  dominion  over  a  particular  portion  or  sub- 
division of  the  earth's  surface.  The  Merovingian  line  of  chief- 
tains were  not  Kings  of  France,  they  were  Kings  of  the  Franks ; 
Alaric  was  King  of  the  Goths  wherever  the  Goths  happened  to 
be,  whether  upon  the  banks  of  the  Tiber,  the  Tagus,  or  the 
Danube.1  The  leading  idea  which  seems  to  have  prevailed 
among  the  conquering  nations  that  settled  down  upon  the 
wreck  of  Rome  was  that  they  were  simply  encamped  on  the 
land  whose  possession  they  had  won.  The  conception  of  sover-  Tribal 
eignty  the  Teutonic  nations  brought  with  them  from  the  forest 
and  the  steppe  was  distinctly  tribal  and  national,  and  not  ter- 
ritorial. The  general  nature  of  the  transition  whereby  the 
primitive  notion  of  tribal  sovereignty  was  gradually  super- 
seded by  that  of  territorial  sovereignty  has  been  described  as 
a  movement  from  personal  to  territorial  organization ;  2  from 
a  state  of  things  in  which  personal  freedom  and  political  rights 
were  the  dominant  ideas  to  a  state  of  things  in  which  those 
ideas  have  become  bound  up  with  and  subservient  to  the  pos- 
session of  land.3  The  most  striking  single  result  of  the  transi- 
tion —  which,  for  the  want  of  a  better  term,  has  been  called 
"the  process  of  feudalization "  4  —  is  that  the  elective  chief  of 
the  nation,  the  primitive  embodiment  of  the  tribal  sovereignty, 
is  gradually  transformed  into  the  hereditary  lord  of  a  given 
area  of  land.  The  new  conception  of  sovereignty,  which  thus  Territorial 
grew  out  of  "the  process  of  feudalization,"  did  not  become  ™£*^** 
established,  however,  until  after  the  breaking-up  of  the  "the process 
Empire  of  Charles  the  Great,  out  of  whose  fragments  have 
arisen  most  of  the  states  of  modern  Europe.  The  completion  of 

1  Maine,   Ancient  Law,   p.    100;  8  Stubbs,  Const.  Hist.,  i,  166. 
Freeman,  Norm.  Conq.,  i,  53.  i  4  Maine,     Village  -  Communities, 

2  Palgrave,  Eng.   Commonwealth,  lecture  v,  "The  Process  of  Feudal- 
pt.  i,  p.  62.  ization." 


114 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Form  assumed 
by  the  mon- 
archy in 
France  repro- 
duced. 


How  federal 
unions  are 
classified. 


Staalcnbund. 


the  transition  is  marked  by  the  accession  of  the  Capetian 
dynasty  in  France.  When  the  hundred  years'  struggle  between 
the  Dukes  of  Paris  and  the  descendants  of  Charles  the  Great 
ended  in  the  triumph  of  Hugh  Capet,  he  not  only  assumed  the 
dynastic  title  of  King  of  the  French,  but  he  also  styled  himself 
King  of  France.1  Hugh  Capet  and  his  descendants  were  kings 
in  the  new  territorial  sense ;  they  were  kings  who  stood  in  the 
same  relation  to  the  land  over  which  they  ruled  as  the  baron 
to  his  estate,  the  tenant  to  his  freehold.  The  form  thus  assumed 
by  the  monarchy  in  France  was  reproduced  in  each  subsequent 
dominion  established  or  consolidated ;  and  thus  has  arisen  the 
state  system  of  modern  Europe  in  which  the  idea  of  territorial 
sovereignty  is  the  basis  of  all  international  relations.2  Until  we 
have  grasped  the  modern  conception  of  the  state  as  the  nation, 
it  is  impossible  to  differentiate  the  Teutonic  leagues  based  on 
that  conception  from  the  ancient  Greek  leagues  based  on  that 
widely  different  conception  of  the  state  known  as  the  city- 
commonwealth.  The  modern  conception  of  the  state,  the  basis 
of  the  existing  international  system,  may  be  said  to  be  the  out- 
come of  the  "  process  of  f eudalization  "  through  which  the  Teu- 
tonic nations  passed  after  their  settlements  within  the  limits 
of  the  Roman  Europe. 

With  the  foregoing  clearly  in  view  it  is  easy  to  explain  the 
principles  upon  which  federal  states  are  classified  by  writers  on 
international  law.  The  less  strictly  organized  union  or  league 
resting  on  the  requisition  system  —  of  the  type  prevailing 
prior  to  the  making  of  the  second  Constitution  of  the  United 
States  —  is  usually  styled  a  confederated  state,  or  in  German 
technical  language  a  Staateribund.  The  leading  characteristic 

1  "The  important  change  oc- 
curred when  the  feudal  prince  of  a 
limited  territory  surrounding  Paris 
began,  from  the  accident  of  his  unit- 
ing an  unusual  number  of  sovereign- 
ties in  his  own  person,  to  call  him- 
self King  of  France,  at  the  same 
time  that  he  usurped  from  the 
earlier  house  their  dynastic  title 
of  Kings  of  the  French."  Maine, 
Ancient  Law,  p.  104.  Mr.  Freeman, 
in  criticising  that  statement,  wrote 
to  the  author  as  follows:  "I  should 
not  say  that  what  Maine  says  about 


Rex  Francorum  and  Rex  FrancitB 
was  other  than  right  in  a  general 
way.  Those  things  came  in  grad- 
ually. Roi  de  France  comes  in  pretty 
early  —  as  early  as  Wace.  I  doubt 
whether  Rex  Francia  is  ever  used, 
till  Henri  I  V's  Rex  FrancicB  et  Navar- 
TCR  as  a  formal  Latin  title."  See  also 
Norman  Conquest,  i,  appendix,  note 
M,  p.  395- 

2  Upon  the  whole  subject  of 
"territorial  sovereignty, "  and  its  re- 
lations to  modern  international  law, 
see  Maine,  Ancient  Law,  99-108. 


IV.]      FEDERALISM  AS  A  SYSTEM  OF  GOVERNMENT  115 

of  such  a  confederation,  so  far  as  its  internal  relations  are  con- 
cerned, is  that  the  state  does  not  entirely  surrender  to  the  cen- 
tral power  its  right  of  dealing  directly  with  other  states.  Only 
after?reserving  to  itself  the  right  thus  to  dispose  of  a  certain 
part  of  its  foreign  affairs  is  the  control  over  the  remainder  sur- 
rendered to  the  central  authority.  Originally  both  the  Swiss 
and  German  confederations  belonged  to  that  class.  While 
the  final  outcome  of  the  struggle  of  the  Swiss  Cantons  to  eman-  Swiss  Con. 
cipate  themselves  from  the  toils  of  the  feudal  system,  begun  federation, 
early  in  the  fourteenth  century,  was  assured  by  the  accession  to 
the  league  in  1513  of  the  last  of  those  thirteen  German  Cantons 
which  were  to  constitute  its  central  membership  down  to  the 
French  Revolution,  it  was  not  until  its  recognition  by  the  great 
powers  in  the  Treaty  of  Westphalia  in  1648  that  the  Swiss  Con- 
federation became  in  the  eyes  of  public  law  a  sovereign  state.1 
Under  the  Constitution  of  the  league  as  it  existed  prior  to  1798 
the  several  cantons  retained  the  right  to  make  separate  treaties 
with  foreign  powers  and  with  each  other ;  and  under  the  new  Act 
of  Confederation,  concluded  in  August,  1815,  between  twenty- 
two  cantons,  the  right  of  each  was  reserved  to  conclude  any 
alliance  which  was  not  prejudicial  to  the  rights  of  the  general 
Confederation  or  of  any  of  its  members.  In  the  same  way  the 
Germanic  Constitution  as  modified  at  the  Peace  of  Westphalia,  Germanic 
which  converted  the  Empire  into  a  confederation  of  the  loosest  Confedera- 
sort,2  gave  to  the  members  of  the  Diet,  by  whose  votes  the 
Emperor  was  to  be  governed,  the  right  not  only  to  contract 
alliances  among  themselves  but  with  foreign  princes,  provided 
no  prejudice  resulted  thereby  to  the  Emperor  and  Empire. 
Under  the  Constitution  of  the  new  German  Confederation, 
embraced  in  the  final  act  of  the  Congress  of  Vienna  (1815),  the 
right  was  still  retained  by  each  state  to  declare  and  carry  on 
war  and  to  negotiate  peace  with  any  foreign  power  to  the  Con- 
federation, and  to  make  its  own  alliances,  provided  no  injury 
was  thereby  inflicted  upon  the  Confederation  itself,  or  upon 
any  of  its  members.3 

1  See  Wilson,  The  State,  sees.  379,  ers  and  to  its  co-states.    Kliiber, 
507,  508.  Oeffentliches   Rechts    des   Deutschen 

2  See  Bryce,  Holy  Roman  Empire,  Bundes,  pp.  137-143.    A  good  com- 
324-  mentary  on  the  Final  Act  may  be 

*  Each   state   also    retained    its      found  in  Twiss,  i,  71-74. 
rights  of  legation  as  to  foreign  pow- 


n6 


THE  AMERICAN  CONSTITUTION 


[Cn. 


United  Pro- 
vinces of  the 
Netherlands. 


States-General 
and  its  powers. 


Criticism  of 
Grotius; 


of  the  Abb6 
Mably. 


The  Low-Dutch  League,  with  whose  infirmities  the  founders 
were  specially  familiar,  was  that  known  as  the  Seven  United 
Provinces  of  the  Netherlands,  a  Staatenbund  (1579-1795),  com- 
posed of  seven  coequal  and  sovereign  states,  each  state  or  pro- 
vince representing  an  aggregation  of  equal  and  independent 
cities.  The  sovereignty  of  the  league  was  vested  in  the  States- 
General,  consisting  usually  of  about  fifty  deputies  appointed 
by  the  provinces,  which  was  armed  with  the  power  to  make 
treaties  and  alliances,  to  make  peace  and  war,  to  raise  armies 
and  equip  fleets.  But  no  federal  taxes  could  be  levied.  When 
an  attempt  was  made  to  establish  a  general  tax,  to  be  adminis- 
tered by  the  federal  authority,  it  failed.  The  league  had  no 
resource  but  the  requisition  system;  it  could  only  ascertain 
quotas  and  demand  contributions;  and  when  the  sovereign 
powers  were  to  be  exercised  by  the  States-General,  unanimity 
and  the  sanction  of  their  constituents  were  necessary.  "It  was 
long  ago  remarked  by  Grotius  that  nothing  but  the  hatred  of 
his  countrymen  to  the  House  of  Austria  kept  them  from  being 
ruined  by  the  vices  of  their  Constitution.  The  union  of 
Utrecht,  says  another  respectable  writer,  reposes  an  authority 
in  the  States-General,  seemingly  sufficient  to  secure  harmony, 
but  the  jealousies  in  each  province  render  the  practice  very 
different  from  the  theory.  The  same  instrument,  says  another, 
obliges  each  province  to  levy  certain  contributions;  but  this 
article  never  could,  and  probably  never  will  be  executed, 
because  the  inland  provinces,  who  have  little  commerce,  can- 
not pay  an  equal  quota.  In  matters  of  contribution,  it  is  the 
practice  to  waive  the  articles  of  the  Constitution.  The  danger 
of  delay  obliges  the  consenting  provinces  to  furnish  their 
quotas  without  waiting  for  the  others,  and  then  to  obtain 
reimbursement  from  the  others  by  deputations  which  are  fre- 
quent, or  otherwise,  as  they  can.  The  great  wealth  and  influ- 
ence of  the  province  of  Holland  enable  her  to  effect  both  those 
purposes.  It  has  more  than  once  happened  that  the  deficiencies 
had  to  be  ultimately  collected  at  the  point  of  the  bayonet."  l 
The  Abbe  Mably  says  that  "Under  such  a  government  the 
union  could  never  have  subsisted,  if  the  provinces  had  not  a 
spring  within  themselves,  capable  of  quickening  their  tardiness, 

1  The  Federalist,  no.  xx,  entitled,  "Example  of  the  United  Netherlands." 
Hamilton  and  Madison  (Ford  ed.),  119-123.  See  also  236,  503. 


IV.]      FEDERALISM  AS  A  SYSTEM  OF  GOVERNMENT  117 

and  compelling  them  to  the  same  way  of  thinking.  This  spring 
is  the  Stadtholder,"  who  in  his  political  capacity  had  authority  Stadtholder 
to  settle  disputes  between  the  provinces  when  other  means  and 
failed;  to  assist  at  the  deliberations  and  conferences  of  the 
States-General,  to  give  audiences  to  foreign  ambassadors,  and 
to  keep  agents  for  his  particular  affairs  at  foreign  courts.  In  his 
military  capacity  he  was  commander-in-chief  of  the  federal 
troops,  with  a  general  power  to  direct  military  affairs ;  while 
in  his  marine  capacity  he  was  admiral-general,  with  a  corre- 
sponding power  to  direct  naval  forces  and  other  naval  affairs. 
The  weakest  part  of  this  Constitution,  perhaps,  was  that  which 
required  unanimity  as  a  condition  precedent  to  the  exercise  of 
the  treaty-making  powers.  In  that  way,  in  1726,  the  Treaty 
of  Hanover  was  delayed  a  whole  year;  in  1648  the  treaty  in 
which  the  independence  of  the  Netherlands  was  involved  was 
concluded  without  the  consent  of  Zealand;  and  in  1688  the 
States-General,  overleaping  their  constitutional  bonds,  con- 
cluded a  treaty  of  themselves  at  the  risk  of  their  heads.  It  is 
not  strange  therefore  that  Sir  William  Temple,  who  was  him-  "Observa- 
self  a  foreign  minister,  should  say  in  his  notable  "  Observations 
upon  the  United  Provinces  of  the  Netherlands,"  that  foreign 
ministers  elude  matters  taken  ad  referendum,  by  tampering 
with  the  provinces  and  cities.  By  reason  of  such  disabilities 
federalism,  as  a  system  of  government,  stood  very  low  in  the 
estimate  of  mankind  at  the  close  of  the  eighteenth  century. 
After  the  flight  of  the  Stadtholder  to  England  in  1795,  the 
republican  party  in  the  provinces  so  reorganized  the  govern- 
ment as  to  bring  it  into  harmony  with  that  of  Paris.  The 
Batavian  Republic  came  into  being  in  close  alliance  with 
France  under  a  new  constitution  that  swept  away  the  ancient 
system  of  representative  government,  the  stadtholderate,  and 
the  offices  of  captain  and  admiral-general.  A  fair  and  open 
representation  was  then  established.  Our  first  Federal  Consti- 
tution was  patterned  after  the  ancient  and  discredited  type  as 
embodied  in  the  constitutions  of  the  Confederation  of  Swiss 
Cantons  and  the  United  Provinces  of  the  Netherlands.  From 
the  inaugural  address  of  President  John  Adams,  1797,  we  learn 
that  "the  Confederation  which  was  early  felt  to  be  necessary 
was  prepared  from  the  models  of  the  Batavian  and  Helvetic 
Confederacies,  the  only  examples  which  remain  with  any  detail 


118  THE  AMERICAN  CONSTITUTION 

and  precision  in  history,  and  certainly  the  only  ones  which 
the  people  at  large  had  ever  considered.  But  reflecting  on  the 
striking  difference  in  so  many  particulars  between  this  country 
and  most  where  a  courier  may  go  from  the  seat  of  govern- 
ment to  the  frontier  in  a  single  day,  it  was  then  certainly  fore- 
seen by  some  who  assisted  in  Congress  at  the  formation  of  it 
that  it  could  not  be  durable."  1 

1  Messages  and  Papers  of  the  Pre-  topographical  position;  by  their  indi- 

sidents,  1789-1897,  i,  228.   In  com-  vidual  weakness  and  insignificance; 

menting  on  the  Swiss  Confederacy  by  the  fear  of  powerful  neighbors, 

in  the  Federalist,  no.  xix,  Hamilton  to  one  of  which  they  were  formerly 

and  Madison  say:  "They  are  kept  subject." 
together  by  the  peculiarity  of  their 


CHAPTER  V 

AMERICAN  CONFEDERATIONS  FROM   1643  TO  1777 

JUST  as  the  pressure  of  a  common  danger  compelled  the  United  Colon- 
Greek  cities  to  draw  together  in  leagues  for  defensive  purposes,  England*5* 
a  like  pressure  forced  the  English  colonies  in  America  to  unite 
for  common  defense  against  the  hostile  savages  in  their  rear, 
and  also  against  the  hostile  colonists  of  other  European  na- 
tions, whose  interests  conflicted  with  their  own.  The  difficult- 
ies and  dangers  growing  out  of  that  condition  of  things  brought 
about  the  formation  of  the  first  American  Confederacy.  No 
sooner  had  the  four  New  England  colonies  of  Massachusetts, 
Connecticut,  New  Haven,  and  Plymouth  completed  their  ex- 
istence than  their  disputes  between  themselves,  and  their 
hostilities  with  the  Dutch  in  New  Netherland,  growing  out  of 
encroachments  on  their  territory,  with  the  French  in  Canada, 
arising  out  of  conflicting  grants,  and  with  the  Indians,  im- 
pelled them,  "  encompassed  by  people  of  several  nations  and 
strange  languages,"  to  enter  "into  a  consociation  for  mutual 
help  and  strength."  The  federal  constitution  of  this  short- 
lived league,  formed  upon  the  requisition  plan,  was  embodied 
in  formal  articles  of  confederation,1  eleven  in  number,  which 
were  agreed  upon  at  Boston,  in  May,  1643.  It  was  provided 
that  the  affairs  of  the  confederacy  should  be  managed  by  a 
board  of  federal  commissioners,  and  that  the  members  of  the 
league  should  be  known  henceforth  as  the  United  Colonies  of 
New  England,2  a  title  taken  no  doubt  from  that  of  the  United 
Provinces  of  the  Netherlands.3 

1  They  were  first  printed  in  1656  English  Colonies  in  America,  Puri- 

in    London,  in   Governor    Eaton's  tan,  etc.,  i,  220-265;  Nar.  and  Crit. 

codeentitled  New  Haven' s  Settling  in  History,  iii,  315,  334,  338,  354,  373; 

New  England.    For  the  text  of  the  Memorial  Hist,  of  Boston,  i,  299. 

articles,  see  Appendix  i.  '  Plymouth  "joined  in  the  New 

3  As  to  the  history  and  structure  England  Confederation  of  1643,  and 

of  that   federation,   see    "Acts   of  though  the  idea  sprang  from  an- 

the  Federal  Commissioners,"  which  other  quarter,  it  is  probable  that  the 

form  the  ninth  and  tenth  volumes  form  was  influenced  by  suggestions 

of   the   Plymouth  Records;   Doyle,  from  the  Plymouth  men,  derived 


120 


THE  AMERICAN  CONSTITUTION 


[CH. 


Albany  con- 
vention of 
1684. 


Albany  meet- 
ing of  1694. 


Penn's  plan 
of  1697. 


Plan  of  1721. 


Clinton's  pro- 
posals of  1744 
and  1752. 


Common  danger  from  the  Indians  gave  the  next  impulse  to 
collective  action  that  resulted  in  a  convention  at  Albany  in 
1,684,  in  which  representatives  of  Massachusetts,  New  York, 
Maryland,  and  Virginia  concerted  measures  of  defense  against 
the  Five  Nations  that  extended  from  North  Carolina  to  the 
northern  boundaries  of  New  England;1  and  in  1694  there 
was  another  meeting  at  Albany  in  which  commissioners  from 
Massachusetts,  Connecticut,  New  York,  and  New  Jersey  met  to 
frame  a  treaty  with  the  Five  Nations,  from  whose  lands  rivers 
flowed  as  warpaths  in  every  direction.2  The  practical  efforts 
thus  made  to  consolidate  power  for  common  defense  were  soon 
followed  by  various  theoretical  plans  for  more  perfect  unions. 
In  1696  the  newly  created  board  of  trade,  of  which  John  Locke 
was  a  member,  suggested  the  appointment  of  a  captain-general 
of  all  the  forces  on  the  continent,  with  such  powers  as  could  be 
exercised  by  a  constitutional  king;  and  in  1697  William  Penn 
appeared  before  the  board  and  advised  an  annual  "congress" 
of  two  delegates  from  each  one  of  the  American  provinces,  to 
determine  by  a  plurality  vote  the  ways  and  means  for^  sup- 
porting their  union,  providing  for  their  safety,  and  regulating 
their  commerce.3  When  in  1711  a  /temporary  emergency 
revived  the  subject,  the  governors  of  New  England  assembled 
at  New  London  to  determine  the  quotas  of  their  respective 
colonies  for  a  proposed  expedition  against  Canada,  and  later 
in  the  year  New  York  was  invited  to  another  conference,  but 
it  came  to  naught.  In  1721,  in  order  to  secure  the  necessary 
cooperation  of  the  colonies  in  the  pending  struggle  between 
England  and  France  for  the  possession  of  North  America,  a 
plan  was  devised  for  placing  a  captain-general  over  the  colon- 
ies, and  for  a  general  council  to  which  each  provirjrigLJ  aaae^m- 
bly  should  send  two  of  its  members.4  The  former  in  conjunc- 
tion with  the  latter  was  to  alter  the  quotas  of  men  and  money 
which  the  several  assemblies  were  to  raise  by  their  own  author- 
ities. In  June,  1744,  George  Clinton,  of  New  York,  submitted 


from  their  experience  in  the  United 
Netherlands."  Nar.  and  Crit.  Hist., 
iii,  281. 

1  See  Frothingham,  Rise  of  the 
Republic,  86. 

1  Mass.  Hist.  Collections,  xxxi, 
102,  containing  journal  of  Benjamin 


Wadsworth,  who  accompanied  the 
Mass,  delegates. 

*  For  the  text  of  Penn's  plan,  see 
Appendix  n. 

4  Cf .  ' '  A  Representation  of  the 
Lords  of  Trade  to  the  King,"  in 
N.  Y.  Col.  Doc.,  v,  591. 


V.]     AMERICAN  CONFEDERATIONS  FROM  1643  TO  1777  121 

to  a  convocation  of  deputies  from  Massachusetts  a  plan  of 
union  something  like  the  early  New  England  Confederacy,  and 
to  that  the  Six  Nations  sent  their  sachems.  In  1751  Clinton 
invited  representatives  of  all  the  colonies  from  New  Hampshire 
to  South  Carolina  to  meet  the  Six  Nations  for  composing  a 
league;  l  and  in  1752  Governor  Dinwiddie  advocated  distinct 
northern  and  southern  confederations.2 

Such  was  the  nature  of  the  loose  confederacies  —  each  rest-  Albany  meet- 
ing on  the  ancient  quota  idea  or  requisition  plan  —  that  pre-  mg  of  I754* 
ceded  the  notable  meeting  held  at  Albany,  June  19,  1754, 
under  an  order  from  the  home  government  bidding  the  col- 
onies to  defend  their  frontiers,  as  the  French  and  Indian  War 
was  about  to  begin.  Twenty-five  delegates  from  the  seven 
northern  colonies  met  at  Albany,  and  among  them  was  Benja- 
min Franklin,  who  is  said  to  have  there  submitted  a  plan  for 
organizing  a  system  of  colonial  defense  which  was  adopted  and 
reported ;  it  provided  for  a  president-general  of  all  the  colonies, 
to  be  appointed  by  the  Crown,  and  a  grand  council  to  be  chosen 
by  the  representatives  of  the  people  of  the  several  colonies.  The 
real  purpose  of  the  meeting  is  revealed  by  Madison,  who  says  Madison's 
that  "as  early  as  the  year  1754,  indications  having  been  given 
of  a  design  in  the  British  Government  to  levy  contributions  on 
the  colonies  without  their  consent,  a  meeting  of  colonial  depu- 
ties took  place  at  Albany,  which  attempted  to  introduce  a  com- 
promising substitute,  that  might  at  once  satisfy  the  British 
requisitions,  and  save  their  own  rights  from  violation.  The 
attempt  had  no  other  effect  than,  by  bringing  these  rights  into 
a  more  conspicuous  view,  to  invigorate  the  attachment  to 
them,  on  the  one  side;  and  to  nourish  the  haughty  and  en- 
croaching spirit  on  the  other."  3  Franklin  himself  has  told  us  Franklin's 
that  "by  this  plan  the  general  government  was  to  be  admin-  statement- 
istered  by  a  president-general ,  appointed  and  supported  by  the 
Crown,  and  a  grand  council,  to  be  chosen  by  the  represent- 
atives of  the  people  of  the  several  colonies,  met  in  their  re- 
spective assemblies,  .  .  .  but  another  scheme  was  formed, 
supposed  to  answer  the  same  purpose  better,  whereby  the 

1  The  journal  of  the  commission-  movements  in  the  opening  chapter 
ers  is  in  the  Mass.  Archives,  xxxviii,  of  vol.  viii  of  his  final  revision;  Nar. 
1 60.  and  Crit.  Hist.,  v,  611  sq. 

2  See  Bancroft's  summary  of  such  *  Madison  Papers,  ii,  686-687. 


122  THE  AMERICAN  CONSTITUTION  [CH. 

governors  of  the  provinces,  with  some  members  of  their  re- 
spective councils,  were  to  meet  and  order  the  raising  of  troops, 
building  of  forts,  etc.,  and  to  draw  on  the  Treasury  of  Great 
Britain  for  the  expense,  which  was  afterwards  to  be  refunded  by  an 
Act  of  Parliament  laying  a  tax  on  America.  .  .  .  Therefore  the 
commissioners  came  to  another  previous  resolution,  viz. :  that 
it  was  necessary  the  union  should  be  established  by  Act  of 
Parliament."  1  In  the  light  of  the  foregoing  it  will  be  easy  to 
understand  the  part  actually  played  by  Franklin  as  it  has  been 
well  described  by  McMaster :  "The  idea  of  union  had  long  been 
in  his  mind,  and  to  the  conference  which  gathered  at  Albany  he 
brought  a  carefully  drawn  plan.  The  credit  of  that  plan  is 
commonly  given  him.  But  it  ought  in  justice  never  to  be  men- 
Plan  of  tioned  without  a  reference  to  the  name  of  Daniel  Coxe.  .  .  . 
So  early  as  1722  Coxe  foresaw  the  French  aggression,  called 
on  the  colonies  to  unite  to  prevent  it,  and  drew  up  the  heads  of 
a  scheme  for  united  action.  Coxe  proposed  a  govenjojtgeneral 
appointed  by  the  Crown  and  a  congress  of  delegates  chosen  by 
the  assemblies  of  the  colonies.  Franklin  proposed  the  very 
same  thing.  Coxe  would  have  each  colony  send  two  delegates 
annually  elected.  Franklin  would  have  from  two  to  seven  dele- 
gates triannually  elected.  By  each  the  grand  council,  with  con- 
sent of  the  governor-general,  was  to  determine  the  QUOTAS  of 
men,  money,  and  provisions  the  colonies  should  contribute  to  the 
common  defense.  The  difference  between  them  is  a  difference  in 
detail,  not  in  plan.  The  detail  belongs  to  Franklin.  The  plan 
must  be  ascribed  to  Coxe."  2 

It  thus  appears  (i)  that  Franklin  was  not  the  real  author  of 
the  plan  of  union  of  1754,  if  plan  it  may  be  called;  (2)  that  the 
scheme  of  taxation  contemplated  in  that  plan  was  simply  the 
ancient  requisition  system  based  on  quotas,  afterwards  embod- 
ied by  Franklin  in  the  Articles  of  Confederation.  McMaster  so 
declares  in  express  terms  when  he  says:  "By  each  the  grand 
council,  with  the  consent  of  the  governor-general,  was  to  deter- 
mine the  quotas  of  men,  money,  and  provisions  the  colonies 
should  contribute  to  the  common  defense"  —  precisely  the 
requisition  system  of  the  Confederation. ,  ' 

1  Cf.   The  Life  and  Writings  of          *  McMaster,  Benjamin  Franklin, 
Benjamin    Franklin    (Smyth),     iii,      162-163.  See  Appendix  HI. 
197,  229,  242,  243,  365;  vi,  356,  416. 


V.]     AMERICAN  CONFEDERATIONS  FROM  1643  TO  1777  123 

Nothing  new  was  proposed  at  Albany  by  Franklin  or  Coxe;  Nothing  new 
and  nothing  came  of  what  was  proposed  except  a  more  deter-  prop036^ 
mined  purpose  upon  the  part  of  the  people  to  reject  what  they 
considered  an  unjustifiable  assault  by  the  British  Crown  upon 
colonial  rights.  To  repeat  the  words  of  Madison:  "The  at- 
tempt had  no  other  effect  than,  by  bringing  these  rights  into  a 
more  conspicuous  view,  to  invigorate  the  attachment  to  them 
on  the  one  side;  and  to  nourish  the  haughty  and  encroaching 
spirit  on  the  other."  As  the  scheme  proposed  at  Albany  gave 
so  much  power  to  the  Crown,  it  was  rejected  by  the  people  in 
every  colony. 

In  estimating  the  effects  of  the  growth  of  population  on  feder-  Effects  of  the 
ation,  it  must  be  remembered  that'during  the  century  and  a  half  JjjJJjS  ?f 
that  intervened  between  the  founding  of  the  first  settlements  federation. 
and  the  close  of  the  French  and  Indian  War  the  population  of 
the  thirteen  colonies  had  swelled  to  full  a  million  and  a  half  *  — 
nearly  one  fourth  of  that  of  the  mother  country.  That  rapid 
increase  forced  upon  the  early  settlements  the  necessity  of  con- 
tinually widening  their  boundaries.  In  that  way  disputes  arose 
not  only  among  the  colonists  themselves,  but  with  settlers  of 
other  nationalities  grouped  about  them  whose  boundaries  were 
defined  in  grants  from  their  own  sovereigns.  The  French,  who 
early  in  the  seventeenth  century  had  possessed  themselves  of 
Canada  and  the  St.  Lawrence,  possessed  themselves  early  in  the 
eighteenth  of  the  Mississippi,  founding  in  1718  the  city  of  New 
Orleans.   Between  the  mouths  of  the  two  mighty  rivers  were 
placed  at  points  of  the  greatest  strategic  value  a  line  of  forts, 
which  were  designed  to  protect  from  English  intrusion  that 
vast  domain  called  New  France,  which  stretched  on  the  west  New  France, 
of  the  Alleghanies  from  New  Orleans  to  Quebec.    By  such 
means  as  these  the  French  hoped  to  retain  for  themselves  the 
valleys  of  the  Mississippi  and  Ohio,  and  to  confine  the  English 
colonies  within  that  comparatively  narrow  strip  of  country 
lying  between  the  Appalachian  range  and  the  Atlantic  Ocean. 
But  when  the  time  for  expansion  came,  when  the  necessities  of  The  struggle 
the  swelling  English  population  impelled  them  to  pass  the  tops  for  e*Pansion' 
of  the  Alleghanies  in  order  to  possess  themselves  of  the  great 
Valleys  beyond,  upon  which  France  had  first  laid  hold,  the  fact 

1  "1,200,000  whites  and  a  quarter  of  a  million  of  negroes."  Green,  Hist, 
of  the  Eng.  People,  iv,  167. 


124  THE  AMERICAN  CONSTITUTION  [Cn. 

was  revealed  that  the  young  giant  of  the  Atlantic  had  only 
been  bound  by  the  thongs  of  Lilliput.1    When  the  English 
colonial  system  came  in  collision  with  the  French  colonial 
system,  when  the  new  self-governing  soldiery  which  had  been 
reared  in  the  southern  countries  and  in  the  New  England  town- 
ships went  out  together  under  the  lead  of  the  mother  country  to 
do  battle  with  a  colonial  power  that  had  never  been  trained  in 
self-reliance,  it  "  was  like  a  Titan  overthrowing  a  cripple."  2 
France's  dream  of  empire  in  the  west  was  broken,  she  was  forced 
to  give  up  her  priceless  possessions  and  to  retire  from  North 
Effects  of          America.  The  results  of  the  French  and  Indian  War  were  mo- 
fndian  War       nientous  in  their  effects  upon  the  cause  of  union.  By  the  over- 
upon  the  throw  of  the  one  enemy  that  they  feared,  the  only  real  cause 

cause  of  union.  for  fae  dependence  of  the  colonies  upon  the  mother  country 
was  removed  at  a  blow;  by  their  joint  endeavors  was  won  the 
vast  domain  beyond  the  Alleghanies  that  was  destined  to 
become  a  national  possession ;  in  the  thick  of  the  fight  the  new 
nationality,  heretofore  unconscious  of  its  real  character,  finally 
awoke  to  a  sense  of  its  oneness.  The  struggle  for  expansion 
thus  became  the  training-school  in  which  the  colonists  were  for 
the  first  time  made  to  realize  their  capacity  for  concert  of 
action  upon  which  they  had  mainly  to  rely  in  the  greater  fight 
that  was  soon  to  come.  Within  two  years  after  the  making  of 
the  Peace  of  Paris,  by  which  the  French  and  Indian  War  was 
formally  terminated,  the  colonies  were  called  upon  to  act  in 
concert  in  resisting  the  Stamp  Act,  which  in  February,  1765, 
had  passed  the  Imperial  Parliament  "with  less  opposition  than 
a  turnpike  bill."  3 

Stamp  Act  When  Massachusetts  spoke  the  word  for  the  first  American 

Congress,  the  nine  of  the  thirteen  colonies  that  met  in  New 
York  in  response  to  the  summons  took  the  first  step  on  the  way 
to  union.  The  Massachusetts  House  of  Representatives,  in  a 
circular  letter  of  June  8,  proposed  to  the  other  colonies  the 
appointment  of  committees  to  meet  at  New  York,  in  October, 

1  See  Nar.  and  Crit.  Hist.,  v,  ch.          »  Green,  Hist,  of  the  Eng.  People, 
viii,  entitled  "  The  Struggle  for  the  iv,    230.    For  the   history   of    the 
great  valleys  of  North  America."  Peace  of  Paris,  February,  1763,  see 

2  Fiske,  Am.  Political  Ideas,  56.  Parkman,  Montcalm  and   Wolfe,  ii, 
But  see  the  criticism  of  that  state-  383  sq. 

ment  in  Nar.  and  Crit.  Hist.,  v,  533, 
note  I. 


V.]     AMERICAN  CONFEDERATIONS  FROM  1643  TO  1777  125 

"to consult  together  on  the  present  circumstances  of  the  colon- 
ies, and  the  difficulties  to  which  they  are  and  must  be  reduced 
by  the  operation  of  the  Acts  of  Parliament,  for  levying  duties 
and  taxes  on  the  colonies;  and  to  consider  of  a  general  and 
united,  dutiful,  loyal  and  humble  representation  of  their  con- 
dition to  His  Majesty  and  to  the  Parliament  and  to  implore 
relief."  Delegates,  variously  appointed  from  Massachusetts, 
Rhode  Island,  Connecticut,  New  York,  New  Jersey,  Pennsyl- 
vania, Delaware,  Maryland,  and  South  Carolina  met  in  Octo- 
ber, with  Timothy  Ruggles  of  Massachusetts  as  chairman,  and 
on  the  iQth  a  "declaration  of  the  rights  and  grievances  of  the 
colonists  in  America,"1  originally  drafted  by  John  Dickinson,  a 
delegate  from  Pennsylvania,  was  agreed  to.  On  the  22d  a  peti- 
tion to  the  King  drawn  by  the  same  hand,  and  a  memorial  and 
petition  to  the  House  of  Lords,  were  approved,  followed  on  the 
23d  by  a  petition  to  the  Commons.  The  petition  to  the  Com- 
mons was  presented  in  that  body,  January  27,  1766,  and,  after 
some  debate,  was  passed  over  without  action. 

On  March  18,  1766,  the  Stamp  Act  was  repealed  by  the 
Whig  Ministry  of  Rockingham  which  succeeded  that  of  Gren- 
ville  in  July,  1765,  it  being  specially  declared  at  the  time,  in  a 
declaratory  act,2  that  the  Parliament  of  Great  Britain  "had 
both,  and  of  right  ought  to  have,  full  power  and  authority  to 
make  laws  and  statutes  of  sufficient  force  and  validity  to  bind 
the  colonies  and  people  of  America,  subjects  of  the  Crown  of 
Great  Britain,  in  all  cases  whatsoever." 

Nine  years  later,  when  Massachusetts,  at  the  suggestion  of  First 
Virginia,  again  gave  the  word,  the  First  Continental  Congress  Continental 
assembled  in  Philadelphia  in  September,  1774,  in  which  all  the  Sept^-m. 
colonies  were  represented  except  Georgia.    In  this  the  first 
American  assembly  which  was  really  national,  and  in  which 
Washington  sat  in  his  colonel's  uniform,  the  new-born  spirit  of 
union  was  embodied  in  a  resolution  that  made  the  cause  of  the 
people  of  Massachusetts  the  cause  of  all  by  the  declaration  that 
if  force  shall  be  used  "all  America  ought  to  support  them  in 
their  opposition."   In  the  preceding   March,  Lord  North's 
Government,  after  commufVcating  to  the  House  the  dispatches  Drastic 
from  America,  had  carried  drastic  measures,  by  one  of  which 
the  port  of  Boston  was  closed,  and  its  trade  transferred,  after 

1  See  Appendix  iv.  f  See  Appendix  v. 


126 


THE  AMERICAN  CONSTITUTION 


[Cm. 


Action  of 

Virginia 

burgesses. 


Leaders  of  the 
Congress. 


June  I,  to  the  older  port  of  Salem.  By  a  second,  the  charter  of 
the  colony  was  suspended.  By  a  third,  provision  was  made  for 
the  quartering  of  troops  within  the  province;  while  by  a  fourth 
was  legalized  the  transfer  to  England  of  trials  growing  out  of 
attempts  to  quell  riots  in  the  colony.  After  the  text  of  the  new 
statute  was  known  in  Boston  on  June  2,  the  governor,  Thomas 
Hutchinson,  who  was  born  and  bred  in  the  colony,  went  to 
England  to  explain  to  the  Ministers  that  "the  prevalence  of  a 
spirit  of  opposition  to  the  Government  in  the  plantation  is  the 
natural  consequence  of  the  great  growth  of  the  colonies  so 
remote  from  the  parent  state,  and  not  the  effect  of  oppression 
in  the  King  or  his  servants,  as  the  promoters  of  this  spirit 
would  have  the  world  believe."  1  In  May,  a  month  before  the 
text  of  the  obnoxious  acts  reached  Boston,  the  burgesses  of 
Virginia  ordered  that  June  I,  the  day  upon  which  the  Boston 
Port  Bill  was  to  take  effect,  be  set  apart  as  a  day  of  fasting  and 
prayer;  and,  after  Dunmore  had  promptly  dissolved  them,  as 
a  counterblast  they  assembled  again  in  the  Raleigh  Tavern 
and  issued  a  call  to  the  other  colonies  for  a  general  congress. 
Rhode  Island,  New  York,  and  Massachusetts  had  also  asked 
for  a  general  "Congress  of  Committees,"  —  the  assembly  of 
the  latter  locking  its  doors  against  the  governor's  messenger, 
sent  to  dissolve  it,  until  it  had  completed  its  choice  of  a  com- 
mittee "to  meet  the  committees  appointed  by  the  several  colo- 
nies to  consult  together  upon  the  present  state  of  the  colonies." 
Those  who  came  together  at  Philadelphia  on  September  5, 
as  a  part  of  an  almost  spontaneous  movement,  were  the  most 
eminent  men  among  the  colonists,  with  an  ability  and  intel- 
ligence that  was  remarkable.  The  most  notable  group,  that 
from  Virginia,  is  arranged  in  the  following  order :  Peyton  Ran- 
dolph (chosen  president),  Richard  Henry  Lee,  George  Wash- 
ington, Patrick  Henry,  Richard  Bland,  Benjamin  Harrison, 
and  Edmund  Pendleton.2  From  South  Carolina  came  two 
members  of  the  Stamp  Act  Congress  of  1765,  John  Rutledge 
and  Christopher  Gadsden;  from  Massachusetts,  Thomas  Cush- 
ing,  Samuel  Adams,  and  John  Adams ;  from  New  York,  John 

1  The  same  idea  was  expressed  by  will  do  what  Carthage  did."  (Euvres 

Turgot,  who  said  that  "colonies  are  de  M.  Turgot  (Paris,  1808-11),  ii,  19, 

like  fruit,  which  cling  to  the  tree  66. 

only  till  they  ripen.    As  soon  as          *  Journals  of  the  Continental  Cow- 
America  can  take  care  of  itself,  it  gress,  1774,  i,  44  (Ford  ed.). 


V.]     AMERICAN  CONFEDERATIONS  FROM  1643  TO  1777  127 

Jay,  James  Duane,  and  Philip  Livingston ;  from  Pennsylvania, 
Joseph  Galloway,  Thomas  MirHin,  and  Edward  Biddle;  from 
New  Hampshire,  John  Sullivan;  from  Connecticut,  Roger 
Sherman  and  Silas  Deane;  from  Rhode  Island,  Stephen  Hop- 
kins; from  Maryland,  Samuel  Chase  and  Robert  Goldsbor- 
ough;  from  New  Jersey,  William  Livingston  and  James 
Kinsey;  from  North  Carolina,  William  Hooper  and  Joseph 
Hewes,  and  Richard  Caswell.  While  Galloway,  the  speaker 
and  leader  of  the  Pennsylvania  assembly,  wished  the  state 
house  to  be  used,  "the  members  met  at  the  City  (or  Smith's) 
Tavern,  at  ten  o'clock,  and  walked  to  the  Carpenters'  Hall, 
where  they  took  a  view  of  the  room,  and  of  the  chamber  where 
is  an  excellent  library.  .  .  .  The  general  cry  was  that  this 
was  a  good  room,  and  the  question  was  put,  whether  we  were 
satisfied  with  this  room?  and  it  passed  in  the  affirmative."  l 

Four  days  after  the  meeting  of  the  Congress  at  Philadelphia,  Declaration  by 
delegates  from  Boston  and  the  other  towns  in  Suffolk  County 
had  declared  in  convention  that  the  acts  complained  of,  being  Sept.  9. 
unconstitutional,  ought  not  to  be  obeyed;  that  the  new  judges 
appointed  under  the  act  of  suspension  ought  not  to  be  per- 
mitted to  act ;  that  the  collectors  of  taxes  should  be  advised  to 
retain  the  money  collected,  rather  than  put  it  into  General 
Gage's  treasury ;  and  that  in  view  of  the  impending  conflict,  the 
people  ought  to  be  urged  to  prepare  for  war,  —  not  with  a  view 
to  provoking  hostilities,  but  in  order,  if  necessary,  to  resist 
aggression.  They  resolved  to  accept  the  action  at  Philadelphia 
as  law  for  the  common  guidance  of  the  colonies;  and  they 
declared  also  for  a  provincial  congress  to  take  the  place  of  the 
legislative  council  of  their  suspended  charter. 

At  the  outset  of  the  seven  weeks'  meeting  of  the  Congress,  NO  talk  of 
which  disclosed  a  nice  balance  of  parties,  there  was  no  talk  of 
actual  revolution  in  the  air.  The  "brace  of  Adamses,"  who 
were  said  to  be  for  independence,  and  who  were  suspected  of 
a  purpose  to  assume  the  leadership,  failed  to  assert  themselves 
in  that  way.  Under  such  conditions  the  assembly  came  near 
accepting  the  guidance  of  the  conservative  Galloway,  a  genu- 
ine loyalist,  and  yet  a  patriot  and  advocate  of  the  legal  rights 
of  the  colonies,  who  proposed  a  memorial  to  the  Crown  sug- 
gesting  a  confederation  of  the  colonies,  with  a  legislature  of  federation. 
1  John  Adams's  Works,  ii,  365. 


128 


AMERICAN  CONSTITUTION 


[Cn. 


Declaration  of 
Rights  and 
Liberties, 
Oct.  14. 


"The  Associa- 
tion," Oct.  20. 


their  own,1  after  the  plan  drafted  by  Coxe  and  Franklin,  in  the 
meeting  at  Albany  in  1754.  That  proposal  failed  by  a  very 
narrow  majority  when  put  to  the  vote.  Even  Rutledge,  de- 
scribed by  Patrick  Henry  as  the  most  eloquent  man  in  the 
assembly,  declared  it  to  be  an  "almost  perfect  plan."  From 
that  idle  dream  the  Congress  turned  to  closer  organization  of 
the  colonies  for  concert  of  action ;  and  to  the  drafting  of  a  series 
of  state  papers  defining  the  principles  upon  which  such  action 
was  to  be  based.  In  those  papers  was  embodied  a  hearty 
response  to  the  appeal  of  Massachusetts.  It  was  the  common 
sentiment  of  all  that  the  whole  continent  should  support  her 
resistance  to  the  unconstitutional  changes  in  her  government, 
and  that  any  one  who  should  accept  office  under  the  new  order 
of  things  ought  to  be  considered  a  public  enemy.  On  October 
14,  the  Congress  agreed  to  a  Declaration  of  Rights  and  Liber- 
ties, asserting  "that  the  inhabitants  of  the  English  colonies  in 
North  America,  by  the  immutable  laws  of  nature,  the  prin- 
ciples of  the  English  Constitution,  and  the  several  charters 
or  compacts,  have  the  following  Rights."  The  first  draft  was 
made  by  John  Sullivan,  and  among  the  Adams  papers  is  a 
paper  in  a  script  "somewhat  resembling  that  of  Major  Sulli- 
van," which  is  believed  to  be  the  report  first  submitted.2  The 
fourth  article,  which  was  prepared  by  John  Adams,  caused 
much  debate  both  in  committee  and  in  Congress,  because 
Galloway  and  his  followers  thought  it  aimed  at  independence. 
An  effort  to  amend  it  failed ;  it  was  left  unaltered  in  its  essen- 
tials; and  in  its  final  form  is  the  work  of  Adams.3  On  the  2Oth 
was  read  and  signed  by  fifty- three  members  "The  Associa- 
tion," 4  in  which  it  was  declared:  "To  obtain  redress  of  these 
grievances,  which  threaten  destruction  to  the  lives,  liberty,  and 
property  of  His  Majesty's  subjects  in  North  America,  we  are 
of  opinion  that  a  non-importation,  non-consumption,  and  non- 
exportation  agreement,  faithfully  adhered  to,  will  prove  the 
most  speedy,  effectual,  and  peaceable  measure."  On  the  2ist, 


1  For  Galloway's  plan,  see  Jour- 
nals of  the  Continental  Congress,  1774, 
i,  43-48  (Ford  ed.).  See  Galloway, 
Historical  and  Political  Reflections 
on  the  Rise  and  Progress  of  the  Ameri- 
can Rebellion  (1780),  70. 


1  It  is  printed  in  Adams's  Works, 

",  535- 

1  See  his  letter  to  Edward  Biddle, 
December  12,1774;  Journals  of  Con- 
tinental Congress,  1774,  >t  63,  and 
notes  (Ford  ed.). 

4  Ibid.  75  sq. 


V.]     AMERICAN  CONFEDERATIONS  FROM  1643  TO  1777  129 

after  the  approval  of  the  address  to  the  people  of  Great  Brit-  Address  to 
ain  drafted  by  John  Jay,  was  resumed  the  consideration  of  the 
memorial  to  the  inhabitants  of  the  British  colonies,  drafted  by  Oct.  ax. 
Richard  Henry  Lee,  and  the  same  being  gone  through  and 
debated  by  paragraphs  and  amended,  was  approved.   On  the 
22d  was  read  the  address  to  be  presented  to  the  colonies  in 
Canada ;  and  on  the  26th  was  signed  the  petition  to  the  King, 
concluding  with  an  expression  of  the  hope  "that  Your  Majesty  Petition  to 
may  enjoy  every  felicity  through  a  long  and  glorious  reign  Kins» Oct- z6- 
over  loyal  and  happy  subjects,  and  that  your  descendants  may 
inherit  your  prosperity  and  dominions  'till  time  shall  be  no 
more."    After  thus  entreating  their  sovereign,  in  terms  of 
affectionate  and  respectful  eloquence,  to  restore  to  them  their 
violated  rights,  their  rights  as  English  freemen,  the  delegates 
provided  for  another  Congress  to  meet  in  the  following  May,  in  Another  Con- 
the  event  that  their  grievances  should  not  in  the  mean  time  be 
redressed.   When  the  proceedings  of  the  Congress  were  pub- 
lished in  England,  Lord  Chatham  declared  that  "for  solidity 
of  reason,  for  sagacity  and  wisdom  of  conclusion,  under  a 
complication  of  difficult  circumstances,  no  nation  or  body  of 
men  can  stand  in  preference  to  the  general  congress  at  Phil- 
adelphia.   The  histories  of  Greece  and  Rome  give  us  nothing 
equal  to  it,  and  all  attempts  to  impose  servitude  upon  such  a 
mighty  continental  nation  must  be  in  vain.*' 

In  the  Second  Continental  Congress,  which  met  at  Phila-  Second 
delphia  in  the  chamber  of  the  state  house  since  known  as  Inde- 
pendence  Hall,  May  10,  1775,  all  the  colonies  appeared;  and,  May,  1775. 
in  the  summer  of  1776,  all  took  part  in  the  two  great  acts l  that 
gave  life  and  character  to  the  new  nationality.  From  the  meet- 
ing of  that  Congress  down  to  March  I,  1781,  when  Maryland 
signed  the  Articles  of  Confederation  and  completed  the  first 
Constitution,  it  was  the  only  cohesive  force  that  held  the  states 
together  and  directed  their  federal  affairs.  During  that  inter- 
val of  nearly  six  years  the  Congress  was  the  Federal  Govern- 
ment —  such  a  government  as  it  was  —  de  jure  and  de  facto  ; 
and  the  general  scope  of  its  powers  cannot  be  more  clearly 

1  On  the  7th  of  June   Richard  free  and  independent  states.  .  .  /i 

Henry   Lee    moved    a    resolution,  And  that  a  plan  of  confederation  be 

which  was  adopted  by  Congress  on  prepared  and  transmitted  to  the  re- 

the  nth,  "That  these  United  Col-  spective  colonies  for  their  considera- 

onies  are,  and  of  right  ought  to  be,  tion  and  approbation." 


130 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Articles  of  Con- 
federation 
drafted  by 
Franklin, 
July,  1775. 


Second  draft 
by  Dickinson, 
July,  1776. 


Debate  begun 
July  22; 


expressed  than  in  the  language  of  Justice  Chase,  who  said  that 
"the  powers  of  Congress  originated  from  necessity  and  arose 
out  of  and  were  only  limited  by  events,  or,  in  other  words,  they 
were  revolutionary  in  their  very  nature.  Their  extent  de- 
pended on  the  exigencies  and  necessities  of  public  affairs."  1 

After  a  long  and  painful  travail  the  Second  Continental  Con- 
gress gave  birth  to  the  first  Federal  Constitution  of  the  United 
States.  "It  appears  that  as  early  as  the  twenty-first  of  July, 
1775,  a  plan,  entitled  'Articles  of  Confederation  and  perpetual 
Union  of  the  Colonies/  had  been  sketched  by  Dr.  Franklin,  the 
plan  being  on  that  day  submitted  by  him  to  Congress;  and 
though  not  copied  into  their  Journals,  remaining  on  their  files 
in  his  handwriting.  But  notwithstanding  the  term  'perpetual' 
observed  in  the  title,  the  Articles  provided  expressly  for  the 
event  of  a  return  of  the  colonies  to  a  connection  with  Great 
Britain."  2  This  sketch  became  the  basis  for  the  plan  reported 
by  the  committee  on  the  I2th  of  July,  now  also  remaining  on  the 
files  of  Congress  in  the  handwriting  of  Mr.  Dickinson.  The 
plan,  though  dated  after  the  Declaration  of  Independence,  was 
probably  drawn  up  before  that  event;  since  the  name  of 
colonies,  not  states,  is  used  throughout  the  draft.  The  plan 
reported  was  debated  and  amended  from  time  to  time,  till  the 
1 7th  of  November,  1777,  when  it  was  agreed  to  by  Congress, 
and  proposed  to  the  legislatures  of  the  states,  with  an  ex- 
planatory and  recommendatory  letter.  The  ratifications  of 
these,  by  their  delegates  in  Congress,  duly  authorized,  took 
place  at  successive  dates ;  but  were  not  completed  till  the  first 
of  March,  1781,  when  Maryland,  who  had  made  it  a  prere- 
quisite that  the  vacant  lands  acquired  from  the  British  Crown 
should  be  a  common  fund,  yielded  to  the  persuasion  that  a  final 
and  formal  establishment  of  the  "  Federal  Union  and  Govern- 
ment would  make  a  favorable  impression,  not  only  on  other 
foreign  nations,  but  on  Great  Britain  herself."  3 

On  July  22  the  House  resolved  itself  into  a  committee  of  the 
whole  to  take  into  consideration  the  articles  of  a  confedera- 
tion reported  by  the  committee  on  July  12;  and  on  the  3Oth 


1  See  Ware  v.  Hylton,  3  Dallas, 
232.  Von  Hoist  incorrectly  attrib- 
utes that  statement  to  Jay,  C.  J. 

8  See   Franklin,    Works   (Sparks 


ed.),  v,  91;  Secret  Journals  of  Con- 
gress (Domestic  Affairs),  2ist  July, 
1775,  i,  283. 
•  Madison  Papers,  ii,  688-689. 


V.]     AMERICAN  CONFEDERATIONS  FROM  1643  TO  1777  131 

and  3 ist  of  that  month,  and  the  first  of  the  ensuing,  those  arti- 
cles were  debated  which  determined  the  proportion  or  quota  of 
money  each  state  should  furnish  to  the  common  treasury,  and 
the  manner  of  voting  in  Congress.  Jefferson  has  preserved  for 
us  only  a  fragment  of  the  debates  that  took  place  in  1776  on  the  fragment 
Declaration  of  Independence  and  on  two  of  the  Articles  of  by  Jefferson. 
Confederation  (Articles  xi  and  xvn)  named  above.  "These 
Debates  were  given  to  Mr.  Madison,  in  Mr.  Jefferson's  own 
handwriting  as  now  on  file  among  Mr.  Madison's  papers.  They 
are  prefixed  as  forming  a  part  of  the  only  materials  known  to 
exist  in  the  form  of  Debates  within  the  Revolutionary  Con- 
gress." l  From  this  precious  fragment  thus  preserved  a  few 
extracts  will  be  taken.  The  original  draft  of  Article  xi  provided  Original  draft 
that  "all  charges  of  war  and  all  other  expenses  that  shall  be 
incurred  for  the  common  defense,  or  general  welfare,  and  al- 
lowed by  the  United  States  assembled,  shall  be  defrayed  out 
of  a  common  treasury,  which  shall  be  supplied  by  the  sev- 
eral colonies  in  proportion  to  the  number  of  inhabitants  of 
every  age,  sex,  and  quality,  except  Indians  not  paying  taxes,  in 
each  colony,  a  true  account  of  which,  distinguishing  the  white 
inhabitants,  shall  be  triennially  taken  and  transmitted  to  the 
Assembly  of  the  United  States."  After  Mr.  Chase  of  Mary-  Comments 
land  had  moved  that  the  quotas  should  be  paid,  not  by  the 
number  of  inhabitants  of  every  condition,  but  by  that  of  the 
"white  inhabitants,"  he  said  "he  considered  the  number  of 
inhabitants  as  a  tolerably  good  criterion  of  property,  and  that 
this  might  always  be  obtained.  He  therefore  thought  it  the 
best  mode  we  could  adopt,  with  one  exception  only.  He  ob- 
served that  negroes  are  property,  and  as  such  cannot  be  dis- 
tinguished from  the  lands  or  personalties  held  in  those  states 
where  there  are  a  few  slaves."  Mr.  John  Adams  then  replied  by  John 
"that  the  numbers  of  people  were  taken  by  this  article  as  an 
index  of  the  wealth  of  a  state,  and  not  as  subjects  of  taxation. 
That  as  to  this  matter  it  was  of  no  consequence  by  what  name 
you  called  your  people,  whether  by  that  of  freemen  or  slaves. 
That  in  some  countries  the  laboring  poor  were  called  freemen, 
in  others  they  were  called  slaves:  but  that  the  difference  as 
to  the  state  was  imaginary  only.  .  .  .  That  the  condition  of 
the  laboring  poor  in  most  countries  —  that  of  the  fishermen, 
1  Madison  Papers,  ii,  9-39. 


132 

by  Wilson; 


THE  AMERICAN  CONSTITUTION 


[Cn. 


by  Wither- 

spoon. 


Article  xvn. 


Comments 
by  Chase; 


by  Franklin; 


particularly  of  the  Northern  States  —  is  as  abject  as  that  of 
slaves."  Mr.  Wilson  said,  "that  if  this  amendment  should  take 
place,  the  Southern  colonies  would  have  all  the  benefit  of  slaves, 
whilst  the  Northern  ones  would  bear  the  burden.  That  slaves 
increase  the  profits  of  a  state,  which  the  Southern  States  mean 
to  take  to  themselves;  that  they  also  increase  the  burden  of 
defense,  which  would  of  course  fall  so  much  the  heavier  on  the 
Northern;  that  slaves  occupy  the  places  of  freemen  and  eat 
their  food.  Dismiss  your  slaves,  and  freemen  will  take  their 
places.  It  is  our  duty  to  lay  every  discouragement  on  the 
importation  of  slaves ;  but  this  amendment  would  give  the  jus 
trium  liber  or  um  to  him  who  would  import  slaves."  Doctor 
Witherspoon  said  "that  the  value  of  lands  and  houses  was  the 
best  estimate  of  the  wealth  of  a  nation,  and  that  it  was  prac- 
ticable to  obtain  such  a  valuation.  ...  It  has  been  objected 
that  negroes  eat  the  food  of  freemen,  and  therefore  should  be 
taxed;  horses  also  eat  the  food  of  freemen,  therefore  they 
should  be  taxed." 

After  the  amendment  had  been  defeated  by  a  vote  of  seven 
Northern  against  five  Southern  States,  with  Georgia  divided, 
the  debate  was  shifted,  with  forty-one  members  present,  to 
Article  xvn,  which  provided  that  "in  determining  questions, 
each  colony  shall  have  one  vote."  Then  it  was  that  "Mr. 
Chase  observed,  that  this  article  was  the  most  likely  to  divide 
us,  of  any  one  proposed  in  the  draught  then  under  consideration. 
That  the  larger  colonies  had  threatened  they  would  not  con- 
federate at  all,  if  their  weight  in  Congress  should  not  be  equal 
to  the  numbers  of  people  they  added  to  the  confederacy; 
while  the  smaller  ones  declared  against  a  union,  if  they  did  not 
retain  an  equal  vote  for  the  protection  of  their  rights.  That  it 
was  of  the  utmost  consequence  to  bring  the  parties  together,  as, 
should  we  sever  from  each  other,  either  no  foreign  power  will 
ally  with  us  at  all,  or  the  different  states  will  form  different 
alliances,  and  thus  increase  the  horrors  of  those  scenes  of  civil 
war  and  bloodshed,  which,  in  such  a  state  of  separation  and 
independence,  would  render  us  a  miserable  people.  ...  He 
therefore  proposed,  that  in  votes  relating  to  money  the  voice 
of  each  colony  should  be  proportioned  to  the  number  of  its 
inhabitants."  Dr.  Franklin  "thought,  that  the  votes  should 
be  so  proportioned  in  all  cases.  He  took  notice  that  the  Dela- 


V.]     AMERICAN  CONFEDERATIONS  FROM  1643  TO  1777  133 

ware  counties  had  bound  up  their  delegates  to  disagree  to  this 
article.  He  thought  it  a  very  extraordinary  language  to  be  held 
by  any  state,  that  they  would  not  confederate  with  us  unless 
we  would  let  them  dispose  of  our  money.  Certainly,  if  we  vote 
equally  we  ought  to  pay  equally:  but  the  smaller  states  will 
hardly  purchase  the  privilege  at  this  price.  .  .  .  He  repro- 
bated the  original  agreement  of  Congress  to  vote  by  colonies, 
and  therefore  was  for  their  voting  in  all  cases  according  to  the 
number  of  taxables."  Doctor  Witherspoon  "opposed  every  byWither- 
alteration  of  the  article.  All  men  admit  that  a  confederacy  is  SP°°D' 
necessary.  Should  the  idea  get  abroad  that  there  is  likely  to 
be  no  union  among  us,  it  will  damp  the  minds  of  the  people, 
diminish  the  glory  of  the  struggle,  and  lessen  its  importance; 
because  it  will  open  to  our  view  future  prospects  of  war  and 
dissension  among  ourselves.  If  an  equal  vote  be  refused,  the 
smaller  states  will  become  vassals  to  the  larger ;  and  all  expe- 
rience has  shown  that  the  vassals  and  subjects  of  free  states 
are  the  most  enslaved."  He  added  "that  the  Belgic  Confed- 
eracy voted  by  provinces."  Doctor  Rush  "took  notice,  that  by  Rush; 
the  decay  of  the  liberties  of  the  Dutch  Republic  proceeded 
from  three  causes:  1st.  The  perfect  unanimity  requisite  on  all 
occasions.  2d.  Their  obligation  to  consult  their  constituents. 
3d.  Their  voting  by  provinces.  This  last  destroyed  the  equal- 
ity of  representation;  and  the  liberties  of  Great  Britain  also  are 
sinking  from  the  same  defect."  Mr.  Hopkins  observed  "that  by  Hopkins, 
history  affords  no  instance  of  such  a  thing  as  equal  representa- 
tion. The  Germanic  body  votes  by  states.  The  Helvetic  body 
does  the  same ;  and  so  does  the  Belgic  Confederacy.  That  too 
little  is  known  of  the  ancient  confederations  to  say  what  was  their 
practice"  Such  are  the  seed-points  of  light  that  glisten 
through  the  precious  fragment  that  preserves  for  us  "the  only 
materials  known  to  exist  in  the  form  of  Debates  within  the 
Revolutionary  Congress."  As  first  words  upon  mighty  ques- 
tions they  possess  an  interest  and  a  value  all  their  own. 

Few  things  in  our  constitutional  history  are  more  moment-  Maryland's 
ous  than  the  determined  refusal  of  Maryland  to  ratify  the  J^uj^ upon 
Articles  until  her  just  demands  as  to  the  western  territory  cessions  to 
should  first  be  complied  with.  At  the  outset  she  was  supported  United  States- 
by  New  Jersey  and  Delaware,  and  their  joint  refusal  to  enter 
into  the  confederacy  grew  out  of  the  controversy  as  to  the  ulti- 


134 


THE  AMERICAN  CONSTITUTION 


[Cn. 


"Instruc- 
tions" to  her 
delegates. 


Virginia, 
New  York, 
Massachusetts, 
and  Con- 
necticut 
yield. 


mate  ownership  of  the  great  western  territory  of  which  France 
had  been  dispossessed.  After  the  Revolution  had  extinguished 
the  rights  of  the  English  Crown  in  that  vast  domain,  Virginia, 
New  York,  Connecticut,  and  Massachusetts  undertook  to 
claim  it  for  themselves  under  conflicting  and  irreconcilable 
titles.  The  three  resisting  states,  whose  western  boundaries 
were  irrevocably  fixed,  could  never  hope  to  share  in  this  great 
heritage  unless  its  ownership  should  be  vested  in  the  corporate 
person  of  the  new  nationality.  To  prevent  such  a  contingency 
the  claiming  states  had  procured  an  amendment  of  the  Articles 
to  the  effect  that  no  state  should  be  deprived  of  territory  for 
the  benefit  of  the  United  States.1  Delaware  and  New  Jersey 
soon  withdrew  from  the  controversy,  leaving  the  fight  for 
national  dominion  over  this  priceless  possession  to  Maryland 
alone.  In  her  "  Instructions"  to  her  delegates  read  in  Congress, 
May  21,  1779,  her  position  was  clearly  and  distinctly  defined. 
She  claimed  "that  a  country  unsettled  at  the  commencement 
of  this  war,  claimed  by  the  British  Crown,  and  ceded  to  it  by 
the  Treaty  of  Paris,  if  wrested  from  that  common  enemy  by  the 
blood  and  treasure  of  the  thirteen  states,  should  be  considered 
as  common  property,  subject  to  be  parceled  out  by  Congress 
into  free,  convenient,  and  independent  governments,  in  such 
manner  and  at  such  times  as  the  wisdom  of  that  assembly  shall 
hereafter  direct."  2  Fortunately  for  the  future  of  the  country, 
from  this  high  ground  she  never  withdrew.  In  January,  1781, 
Virginia  agreed  conditionally  to  yield  her  claims; 3  on  March  I, 
1781,  New  York  executed  a  transfer  of  her  rights  to  the  United 
States ;  and  on  that  day  Maryland  completed  the  new  Consti- 
tution by  giving  it  her  adhesion.4  Exactly  three  years  there- 
after Virginia  conveyed  without  conditions,  and  in  due  time 
Massachusetts  and  Connecticut  did  substantially  the  same 
thing.  In  that  way  the  new  nationality  became  the  sovereign 
possessor  of  "the  whole  northwestern  territory  —  the  area  of 
the  great  states  of  Michigan,  Wisconsin,  Illinois,  Indiana,  and 
Ohio  (excepting  the  Connecticut  Reserve,"  5  which,  under  the 
Articles  of  Confederation,  it  had  no  express  right  either  to  hold 


1  See  Journals  of  Congress,  ii,  304. 
8  Ibid,  iii,  281. 

*  Journal  of  Va.  House  of  Dele- 
gates, 79. 


4  Journals  of  Congress,  iii,  581, 
582,  591- 

5  The  Critical  Period,  194. 


V.]     AMERICAN  CONFEDERATIONS  FROM  1643  TO  1777  135 

or  govern.)1  Not  until  Maryland  had  been  assured  that  this  Northwest 
great  prize  should  belong  to  the  new  confederacy,  not  until  ^n^ty 

vested  m  new 

its  right  to  possess  this  vast  domain  as  folkland  had  been  nationality, 
clearly  admitted,  did  she  agree  to  become  a  member  of  the 
league  whose  Constitution  soon  proved  itself  to  be  more  weak, 
more  worthless,  more  impotent  than  that  of  any  of  the  older 
Teutonic  leagues  after  which  it  was  patterned. 

In  1754  we  find  Dr.  Franklin  at  Albany  proposing  a  plan  of  sterility  of 
federation,  heretofore  explained,  of  which  Daniel  Coxe  was 
probably  the  chief  designer.  Twenty-one  years  later  we  find  tion. 
him  at  Philadelphia  making  the  first  draft  of  the  Articles  of 
Confederation,  which  survives  in  his  handwriting.  As  that  per- 
formance simply  embodied  the  then  prevailing  type  of  confed- 
eration resting  on  the  requisition  system,  the  documentary 
evidence  is  conclusive  that,  down  to  that  time,  the  most 
original  and  resourceful  mind  of  the  epoch  had  conceived  of 
nothing  new  in  the  way  of  a  federal  government.  And,  so  far  as 
Congress  and  the  state  legislatures  were  concerned,  certainly 
no  attempt  at  change  or  reform  was  made  down  to  the  comple- 
tion of  the  first  Constitution  by  the  acceptance  of  the  Articles 
by  Maryland,  March  I,  1781.  That,  down  to  that  date,  Amer- 
ican statesmen  had  exhibited  no  fertility  of  resource  whatever 
in  the  making  of  federal  constitutions  is  manifest  from  the  text 
of  their  first  performance  reproduced  as  Appendix  x. 

The  one  particular  in  which  our  first  Federal  Constitution  rose  The  principle 
above  the  older  Teutonic  leagues  after  which  it  was  patterned 
was  embodied  in  the  new  principle  of  interstate  citizenship, 
which  it  originated.  "The  principle  of  inter-citizenship  infused 
itself  neither  into  the  constitution  of  the  old  German  Empire, 
nor  of  Switzerland,  nor  of  Holland."  2  Section  one  of  Article 
four  of  the  Articles  of  Confederation  provided  that  "the  bet- 
ter to  secure  and  perpetuate  mutual  friendship  and  intercourse 
among  the  people  of  the  different  states  of  this  Union,  the  free 
inhabitants  of  each  of  these  states,  paupers,  vagabonds,  and 
fugitives  from  justice  excepted,  shall  be  entitled  to  all  privi- 
leges and  immunities  of  free  citizens  of  the  several  states."  The 

1  As  to  "the  exercise  of  national  Dr.  Adams's  paper  entitled  "Mary- 
sovereignty  in  the  sense  of  eminent  land's  Influence  upon  Land  Cessions 
domain,  a  power  totally  foreign  to  of  the  United  States."   /.  H.  Studies, 
the  Articles  of  Confederation  "  under  3d  series, 
the  Ordinances  of  1784  and  1787,  see          2  Bancroft,  Hist,  of  Const.,  i,  118. 


136 


THE  AMERICAN  CONSTITUTION 


[CH. 


First  Constitu- 
tion devoid  of 
taxing  power. 


Purse  and 
sword  retained 
by  the  states. 


Congress  pos- 
sesssed  hardly 
more  than  ad- 
visory power. 


substance  of  that  provision  was  reproduced  in  Section  two  of 
Article  four  of  the  existing  Constitution,  which  provides  that 
"the  citizens  of  each  state  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  states."  With  that 
exception  the  first  Constitution  simply  created,  on  the  old 
plan,  "a  firm  league  of  friendship,"  in  which  no  taxing  power 
whatever  was  vested.  "All  charges  of  war,  and  all  other 
expenses  that  shall  be  incurred  for  the  common  defense  or 
general  welfare,  and  allowed  by  the  United  States  in  Congress 
assembled,  shall  be  defrayed  out  of  a  common  treasury,  which 
shall  be  supplied  by  the  several  states,  in  proportion  to  the 
value  of  the  land  within  each  state.  .  .  .  The  taxes  for  paying 
that  proportion  shall  be  laid  and  levied  by  the  authority  and 
direction  of  the  legislatures  of  the  several  states,  within  the 
time  agreed  upon  by  the  United  States  in  Congress  assem- 
bled." 

Congress  was  authorized  "to  agree  upon  the  number  of 
land  forces,  and  to  make  requisitions  from  each  state  for  its 
quota,  in  proportion  to  the  number  of  white  inhabitants  in 
such  state,  which  requisition  shall  be  binding;  and  thereupon 
the  legislature  of  each  state  shall  appoint  the  regimental  of- 
ficers; raise  the  men,  clothe,  arm  and  equip  them."  Thus  the 
entire  control  of  the  purse  and  the  sword  was  retained  by  the 
state  legislatures.  There  was  no  national  executive  or  judi- 
ciary. Such  federal  powers  as  the  Confederation  did  possess 
were  vested  and  confused  in  a  one-chamber  assembly  composed 
of  delegates  which  the  state  legislatures  could  appoint  and 
recall  at  pleasure.  In  that  assembly  each  state  had  an  equal 
vote;  important  measures  required  the  votes  of  nine  of  the 
thirteen  states  and  amendments  the  votes  of  all.  Congress 
could  borrow  money,  but  it  could  make  no  provision  for  its 
repayment  outside  of  the  requisition  system  that  depended 
alone  on  the  power  of  the  states ;  it  alone  could  declare  war,  but 
it  had  no  power  to  compel  the  enlistment,  arming,  or  support  of 
an  army;  it  alone  could  decide  disputes  between  the  states,  but 
it  had  no  power  to  compel  either  disputant  to  respect  or  obey 
its  decisions ;  it  alone  could  make  treaties  with  foreign  nations, 
but  it  had  no  power  to  prevent  individual  states  from  violating 
them.  Congress  had  no  power  to  prevent  or  punish  offenses 
against  its  own  laws,  or  even  effectively  to  perform  the  duties 


V.]     AMERICAN  CONFEDERATIONS  FROM  1643  TO  1777  137 

imposed  upon  it  by  the  constitution  of  the  league ;  it  had  hardly 
more  than  advisory  powers  at  best.  Even  commerce,  foreign 
and  domestic,  was  to  be  regulated  entirely  by  the  states ;  and  it 
was  not  long  before  state  self-interest  began  to  show  itself  in 
the  regulation  of  duties  on  imports.  The  states  were,  however, 
forbidden  to  make  treaties,  peace,  or  war,  to  grant  titles  of 
nobility,  to  keep  vessels  of  war  or  soldiers,  or  to  buy  imports 
that  would  conflict  with  treaties  already  proposed  to  France  or 
Spain.  The  fatal  defect  in  such  a  constitution  was  of  course  a 
lack  of  taxing  power,  a  lack  the  quota  system  utterly  failed  to 
supply. 

In  reviewing  the  history  of  the  results  of  that  system  Ham- 
ilton said:  "The  universal  delinquency  of  the  states  during  Hamilton's 
the  war  shall  be  passed  over  with  the  bare  mention  of  it. 
The  public  embarrassments  were  a  plausible  apology  for  that 
delinquency;  and  it  was  hoped  the  peace  would  have  produced 
greater  punctuality.  The  experiment  has  disappointed  that 
hope  to  a  degree  which  confounds  the  least  sanguine.  A  com- 
parative view  of  the  compliances  of  the  several  states  for  the 
five  last  years  will  furnish  a  striking  result.  During  that 
period,  as  appears  by  a  statement  on  our  files,  New  Hampshire, 
North  Carolina,  South  Carolina,  and  Georgia  have  paid  no- 
thing. I  say  '  nothing '  because  the  only  actual  payment  is  the 
trifling  sum  of  about  seven  thousand  dollars  by  New  Hamp- 
shire. South  Carolina  indeed  has  credits,  but  these  are  merely 
by  way  of  discount  on  the  supplies  furnished  by  her  during  the 
war,  in  consideration  of  her  peculiar  sufferings  and  exertions 
while  the  immediate  theatre  of  it.  Connecticut  and  Delaware 
have  paid  about  one  third  of  their  requisitions;  Massachusetts, 
Rhode  Island,  and  Maryland,  about  one  half;  Virginia  about 
three  fifths;  Pennsylvania  nearly  the  whole;  and  New  York 
more  than  her  quota.  .  .  .  Things  are  continually  growing 
worse ;  the  last  year  in  particular  produced  less  than  $200,000, 
and  that  from  only  two  or  three  states.  Several  of  the  states 
have  been  so  long  unaccustomed  to  pay,  that  they  seem  no 
longer  concerned  even  about  the  appearance  of  compliance. 
Connecticut  and  New  Jersey  have  almost  formally  declined 
paying  any  longer.  The  ostensible  motive  is  the  non-concur- 
rence of  the  state  in  the  import  system.  The  real  one  must  be 
conjectured  from  the  fact.  Pennsylvania,  if  I  understand  the 


138  THE  AMERICAN  CONSTITUTION  [Cn. 

scope  of  some  late  resolutions,  means  to  discount  the  interest 
she  pays  upon  her  assumption  to  her  own  citizens;  in  which 
case  there  will  be  little  coming  from  her  to  the  United  States. 
This  seems  to  be  bringing  matters  to  a  crisis.  The  pecuniary 
support  of  the  Federal  Government  has  of  late  devolved  almost 
entirely  upon  Pennsylvania  and  New  York.  If  Pennsylvania 
refused  to  continue  her  aid,  what  will  be  the  situation  of  New 
York:  Are  we  willing  to  be  the  Atlas  of  the  Union?  or  are  we 
willing  to  see  it  perish?"  l 

1  Speech  delivered  in  New  York      1787.  See  Hamilton's  Works  (Lodge 
legislature  on  the  revenue  system  in      ed.),  ii,  192  sq. 


CHAPTER  VI 

PELATIAH  WEBSTER'S  INVENTION  OF  FEBRUARY  16,  1783 

BY  Hamilton's  masterful  summary  the  fact  is  fixed  with  the  First  Federal 
precision   of   a   mathematical   demonstration   that  our  first  ^e^rom  a 
Federal  Constitution  failed  because  it  did  not  possess  either  the  lack  of  taxing 
power  to  impose  or  to  collect  federal  taxes  as  such.  The  entire  P°wer- 
taxing  power  was  vested  in  thirteen  state  legislatures,  each  of 
which  could  fail  in  its  duty  under  the  quota  system,  without  the 
fear  of  being  coerced  or  punished  by  the  federal  head.   From 
the  review  heretofore  made  of  preexisting  federal  governments, 
during   the   two   thousand   years   and  more  that  intervene 
between  the  founding  of  the  Achaian  League  (B.C.  281),  and 
the  completion  of  the  Articles  of  Confederation  (March  I, 
1781),  it  appears  that  during  that  vast  expanse  of  time  no 
federal  government  had  ever  existed  armed  with  the  power  to 
tax.  In  every  one  of  them  the  entire  taxing  power  was  vested 
in  the  states  or  cities  composing  the  league;  in  every  one  of 
them  contributions  were  made  through  the  requisition  or  quota 
system.    No  claim  can  be  set  up  that  any  American  states-  No  real  re- 
man connected  with  the  administration  of  government  ever 
proposed  prior  to  February  16,  1783,  any  departure  from  the  101783. 
one  stereotyped  plan  of  federal  government  the  world  had  ever 
known.   When  Coxe  and  Franklin  made  their  experiment  in 
1754  they  simply  reproduced  the  ancient  quota  system;  when  in 
1775  Franklin  was  given  a  free  hand  to  draft  a  new  federal  con- 
stitution as  a  whole  he  made  no  material  change  in  his  original 
performance ;  during  the  six  years  in  which  the  Franklin  draft 
was  in  the  process  of  amendment  by  Congress,  that  body  made 
no  attempt  to  depart  from  the  old  model.  When  in  January, 
1783,  the  desperate  struggle  for  federal  revenue  that  followed 
the  close  of  hostilities  reached  its  climax,  the  one  thought  of 
those  who  directed  the  deliberations  of  Congress  was  to  amend 
the  old  system  by  some  financial  expedient  that  depended 
entirely  upon  the  unanimous  consent  of  thirteen  states  bitterly 
opposed  to  any  relinquishment  of  the  taxing  power.   In  sum- 


140 


THE  AMERICAN  CONSTITUTION 


[CH. 


Mr.  Eland's 
summing  up, 
Jan.  27, 1783. 


140  years 
of  sterility. 


Servile 
copying. 


Webster  pro- 
posed to  abol- 
ish ancient 
system  as 
early  as  1781. 


ming  up  the  situation  on  January  27,  Mr.  Bland  of  Virginia 
said :  "That  the  ideas  of  the  states  on  the  subject  were  so  averse 
to  a  general  revenue  in  the  hands  of  Congress,  that  if  such  a 
revenue  were  proper  it  was  unattainable ;  that  as  the  deficiency 
of  the  contributions  from  the  states  proceeded,  not  from  their 
complaints  of  their  inability,  but  of  the  inequality  of  the  ap- 
portionments, it  would  be  a  wiser  course  to  pursue  the  rule 
of  the  Confederation,  to  wit,  to  ground  the  requisition  on  an 
actual  valuation  of  lands ;  that  Congress  would  then  stand  on 
firm  ground,  and  a  practicable  mode."  1  At  an  earlier  moment 
on  that  very  day,  Mr.  Bland  had  notified  Congress  of  the  act 
of  his  state  repealing  the  grant  of  the  impost  and  of  her  inabil- 
ity to  pay  her  quota  beyond  a  certain  amount.2  Just  an  hun- 
dred and  forty  years  had  elapsed  since  the  English  colon- 
ists in  America  embodied  their  first  attempt  to  construct 
a  federal  system  in  the  constitution  of  the  United  Colonies  of 
New  England  modeled  upon  that  of  the  United  Provinces 
of  the  Netherlands  of  which  the  Plymouth  men  had  a  special 
knowledge  and  experience.  President  John  Adams  summed  up 
the  whole  matter  when  he  said  in  his  inaugural  address,  hereto- 
fore quoted,  that  the  United  Provinces  of  the  Netherlands  and 
the  Confederation  of  Swiss  Cantons  were  "the  only  examples 
which  remain  with  any  detail  and  precision  in  history,  and 
certainly  the  only  ones  which  the  people  at  large  had  ever 
considered."  In  1643  American  statesmen  began  by  making 
a  servile  copy  of  those  impotent  systems,  "kept  together  by 
the  peculiarity  of  their  topographical  position";  and  down  to 
the  beginning  of  the  year  1783  no  advance  whatever  had  been 
made  upon  them. 

When  the  time  was  thus  ripe  for  a  revolution,  an  original 
thinker  of  the  highest  order,  an  experienced  financier,  and  the 
most  authoritative  expounder  of  political  economy  of  that 
epoch,  grappled  with  the  pending  taxative  and  financial  pro- 
blem and  solved  it  in  the  only  way  in  which  it  could  have  been 
solved.  Foreseeing  what  was  to  come,  Pelatiah  Webster  had 

1  Madison  Papers,   i,   288.   The  to  value  the  land,  and  return  the 

debate  on  revenue  began  on  January  valuations  to  Congress.    Ibid.  249- 

8,  "on  the  report  for  valuing  the  301. 

land  conformably  to  the  rule  laid  *  Resolution  of  28th   Dec.,  1782, 

down  in  the  Federal  Articles."  That  in  Journal  of  House  of  Delegates.  80, 

rule  proposed  to  require  the  states  90. 


VI.]  PELATIAH  WEBSTER'S  INVENTION  141 

proposed  in  1781  the  entire  abolition  of  the  ancient  conception 
of  a  federal  government  resting  on  the  quota  system  with 
which  the  world  had  been  for  so  long  a  time  cursed.  No  one 
ever  comprehended  more  clearly  than  he  did  the  utter  hope- 
lessness of  the  attempt  to  amend  a  federal  system  that  should 
be  abolished  as  a  whole.  That  statement  can  best  be  supported 
by  his  own  words :  — 

"Note  I.    Forming  a  plan  of  confederation  or  a  system  of  His  exposure 
general  government  of  the  United  States  engrossed  the  atten-  °fj^f?he~ 
tion  of  Congress  from  the  Declaration  of  Independence,  July  4,  first  Constitu- 
1776,  till  the  same  was  completed  by  Congress,  July  9,  1778,  tlon- 
and  recommended  to  the  several  States  for  ratification,  which 
finally  took  place  March  I,  1781,  from  which  time  the  said  con- 
federation was  considered  as  the  grand  constitution  of  the  gen- 
eral government,  and  the  whole  administration  was  conformed 
to  it. 

"And  as  it  had  stood  the  test  of  discussion  in  Congress  for 
two  years  before  they  completed  and  adopted  it,  and  in  all  the 
States  for  three  years  more  before  it  was  finally  ratified,  one 
would  have  thought  that  it  must  have  been  a  very  finished 
and  perfect  plan  of  government. 

"But  on  trial  of  it  in  practice  it  was  found  to  be  extremely 
weak,  defective,  totally  inefficient,  and  altogether  inadequate 
to  its  great  ends  and  purposes,  for 

"  i.  It  blended  the  legislative  and  executive  powers  together 
in  one  body. 

"2.  This  body,  viz.:  Congress,  consisted  of  but  one  house, 
without  any  check  upon  their  resolutions. 

"3.  The  powers  of  Congress  in  very  few  instances  were  defin- 
itive and  final ;  in  the  most  important  articles  of  government 
they  could  do  no  more  than  recommend  to  the  several  States, 
the  consent  of  every  one  of  which  was  necessary  to  give  legal 
sanction  to  any  act  so  recommended. 

"4.  They  could  assess  and  levy  no  taxes. 

"5.  They  could  institute  and  execute  no  punishments  except 
in  the  military  department. 

"6.  They  had  no  power  of  deciding  or  controlling  the  con- 
tentions and  disputes  of  different  States  with  each  other. 

"7.  They  could  not  regulate  the  general  trade;  or, 

"8.  Even  make  laws  to  secure  either  public  treaties  with 


142 


THE  AMERICAN  CONSTITUTION 


[Cn. 


"Absurd 
doctrine  of 
rotation." 


"Ten  times 
easier  to  form 
a  new  constitu- 
tion than  to 
mend  the  old 
one." 


foreign  States,  or  the  persons  of  public  ambassadors,  or  to 
punish  violations  or  injuries  done  to  either  of  them. 

"9.  They  could  institute  no  general  judiciary  powers. 

"  10.  They  could  regulate  no  public  roads,  canals,  or  inland 
navigation,  etc.,  etc.,  etc. 

"And  what  caps  all  the  rest  was  that  (whilst  under  such  an 
inefficient  political  constitution  the  only  chance  we  had  of  any 
tolerable  administration  lay  wholly  in  the  prudence  and  wisdom 
of  the  men  who  happened  to  take  the  lead  in  our  public  coun- 
cils) it  was  fatally  provided,  by  the  absurd  doctrine  of  rotation, 
that  if  any  member  of  Congress  by  three  years'  experience  and 
application  had  qualified  himself  to  manage  our  public  affairs 
with  consistency  and  fitness,  that  he  should  be  constitutionally 
and  absolutely  rendered  incapable  of  serving  any  longer  till  by 
three  years'  discontinuance  he  had  pretty  well  lost  the  cue  or 
train  of  the  public  counsels  and  forgot  the  ideas  and  plans 
which  made  his  service  useful  and  important,  and,  in  the  mean- 
time, his  place  should  be  supplied  by  a  fresh  man,  who  had  the 
whole  matter  to  learn,  and  when  he  had  learned  it  was  to  give 
place  to  another  fresh  man,  and  so  on  to  the  end  of  the  chapter. 

"The  sensible  mind  of  the  United  States  by  long  experience 
of  the  fatal  mischief  of  anarchy,  or  (which  is  about  the  same 
thing)  of  this  ridiculous,  inefficient  form  of  government,  began 
to  apprehend  that  there  was  something  wrong  in  our  policy 
which  ought  to  be  redressed  and  mended,  but  nobody  under- 
took to  delineate  the  necessary  amendments. 

"  I  was  then  pretty  much  at  leisure,  and  was  fully  of  opinion 
(though  the  sentiment  of  that  time  would  not  very  well  bear) 
that  it  would  be  ten  times  easier  to  form  a  new  constitution 
than  to  mend  the  old  one.1  I  therefore  sat  myself  down  to 
sketch  out  the  leading  principles  of  that  political  constitution 
which  I  thought  necessary  to  the  preservation  and  happiness 
of  the  United  States  of  America,  which  are  comprised  in  this 
Dissertation. 

"  /  hope  the  reader  will  please  consider  that  these  are  the 


1  Nothing  is  more  remarkable 
than  the  boldness  with  which  he 
stated  that  view  while  other  men 
clung  to  the  idea  of  amending  the 
Articles  of  Confederation.  The  so- 
called  Virginia  plan  presented  in 


May,  1787,  begins  with  the  declara- 
tion "  that  the  Articles  of  Confedera- 
tion ought  to  be  so  corrected  and 
enlarged  as  to  accomplish  the  objects 
proposed  by  their  institution." 


VI.]  PELATIAH  WEBSTER'S  INVENTION  143 

original  thoughts  of  a  private  individual,  dictated  by  the  nature 
of  the  subject  only,  long  before  the  important  theme  became  the 
great  object  of  discussion  in  the  most  dignified  and  important 
assembly  which  ever  sat  or  decided  in  America.11 

The  bold  innovator  has  thus  given  us  in  a  very  striking  form 
the  reasons  that  impelled  him  to  propose  in  1781  the  calling 
of  a  "Continental  Convention,"  for  the  purpose  of  wiping  out 
the  first  Federal  Constitution  as  a  whole,  and  substituting  for 
it  a  new  scheme  resting  on  a  wholly  novel  theory. 

On  February  16,  1783,  when  Philadelphia  was  the  storm-  Plan  of  Feb. 
centre  of  the  struggle  so  to  amend  the  first  Federal  Constitution  ished  at  th? 
as  to  enable  it  to  produce  a  more  certain  revenue,  Pelatiah  very  doors  of 
Webster  published,  at  the  very  doors  of  Congress,  his  entirely  Consress- 
new  plan  of  a  federal  government  which  was  to  solve  the  pro- 
blem not  only  for  this  country  but  for  all  the  world.  Striking 
at  the  very  heart  of  the  difficulty,  he  said  that  the  power  to  levy 
federal  taxes  must  be  taken  away  from  the  thirteen  popular 
assemblies  and  vested  directly  in  a*sovereign  federal  assembly 
armed  with  the  independent  power  to  enforce  its  own  man- 
dates, through  its  own  machinery.  To  use  his  own  words :  — 

"  I  begin  with  my  first  and  great  principle,  viz.:  That  the  Webster's 
Constitution  must  vest  powers  in  every  department  sufficient 
to  secure  and  make  effectual  the  ends  of  it.  The  supreme 
authority  must  have  the  power  of  making  war  and  peace  — 
of  appointing  armies  and  navies  —  of  appointing  officers  both 
civil  and  military  —  of  making  contracts  —  of  emitting,  coin- 
ing, and  borrowing  money  —  of  regulating  trade  —  of  making 
treaties  with  foreign  powers  —  of  establishing  post-offices  — 
and  in  short  of  doing  everything  which  the  well-being  of  the 
Commonwealth  may  require,  and  which  is  not  compatible  to 
any  particular  State,  all  of  which  require  money,  and  cannot 
possibly  be  made  effectual  without  it. 

"  They  must  therefore  of  necessity  be  vested  with  power  of  taxa- 
tion. I  know  this  is  a  most  important  and  weighty  truth,  a  dread- 
ful engine  of  oppression,  tyranny,  and  injury,  when  ill  used;  yet, 
from  the  necessity  of  the  case  it  must  be  admitted. 

"For  to  give  a  supreme  authority  a  power  of  making  con- 
tracts, without  any  power  of  payment  —  of  appointing  officers 
civil  and  military,  without  money  to  pay  them  —  a  power  to 
build  ships,  without  any  money  to  do  it  with  —  a  power  of 


144 


THE  AMERICAN  CONSTITUTION 


[Cn. 


"Supreme 
authority" 
must  not  de- 
pend on  "thir- 
teen popular 
assemblies." 


Must  levy 
duties  on 
imports. 


emitting  money,  without  any  power  to  redeem  it  —  or  of  bor- 
rowing money,  without  any  power  to  make  payment,  etc.,  etc. 

—  such  solecisms  in  government  are  so  nugatory  and  absurd 
that  I  really  think  to  offer  further  argument  on  the  subject  would 
be  to  insult  the  understanding  of  my  readers. 

"  To  make  all  these  payments  dependent  on  the  votes  of  thirteen 
popular  assemblies,  who  will  undertake  to  judge  of  the  propriety  of 
every  contract  and  every  occasion  of  money,  and  grant  or  withhold 
supplies,  according  to  their  opinion,  whilst  at  the  same  time  the 
operations  of  the  whole  may  be  stopped  by  the  vote  of  a  single  one  of 
them,  is  absurd;  for  this  renders  all  supplies  so  precarious  and 
the  public  credit  so  extremely  uncertain,  as  must  in  its  nature 
render  all  efforts  in  war,  and  all  regular  administration  in 
peace,  utterly  impracticable,  as  well  as  most  pointedly  ridic- 
ulous. Is  there  a  man  to  be  found  who  would  lend  money,  or 
render  personal  services,  or  make  contracts  on  such  precarious 
security?  Of  this  we  have  a  proof  of  fact,  the  strongest  of  all 
proofs,  a  fatal  experience,  the  surest  tho'  severest  of  all 
demonstration,  which  renders  all  other  proof  or  argument  on 
this  subject  quite  unnecessary. 

"  The  present  broken  state  of  our  finances  —  public  debts  and 
bankruptcies  —  enormous  and  ridiculous  depreciation  of  pub- 
lic securities  —  with  the  total  annihilation  of  our  public  credit 

—  prove  beyond  all  contradiction  the  vanity  of  all  recourse  to 
the  particular  Assemblies  of  the  States.  The  recent  instance 
of  the  duty  of  five  per  cent  on  imported  goods,  struck  dead, 
and  the  bankruptcies  which  ensued  on  the  single  vote  of  Rhode 
Island,  affords  another  proof  of  what  it  is  certain  may  be  done 
again  in  like  circumstances. 

"/  have  another  reason  why  a  power  of  taxation  or  of  raising 
money,  ought  to  be  vested  in  the  supreme  authority  of  our  common- 
wealth,  viz.:  the  monies  necessary  for  the  public  ought  to  be 
raised  by  a  duty  imposed  on  imported  goods,  not  a  bare  five 
per  cent  or  any  other  per  cent  on  all  imported  goods  indis- 
criminately, but  a  duty  much  heavier  on  all  articles  of  luxury 
or  mere  ornament,  and  which  are  consumed  principally  by  the 
rich  or  prodigal  part  of  the  community,  such  as  silks  of  all 
sorts,  muslins,  cambricks,  lawns,  superfine  cloths,  spirits,  wines, 
etc.,  etc. 

"Such  an  impost  would  ease  the  husbandman,  the  mechanic, 


VI.]  PELATIAH  WEBSTER'S  INVENTION  145 

and  the  poor;  would  have  all  the  practical  effects  of  a  sumptu- 
ary law;  would  mend  the  economy,  and  increase  the  industry  of 
the  community;  would  be  collected  without  the  shocking  cir- 
cumstances of  collectors  and  their  warrants;  and  make  the 
quantity  of  tax  paid  always  depend  on  the  choice  of  the  person 
who  pays  it. 

"  This  tax  can  be  laid  by  the  supreme  authority  much  more  con- 
veniently than  by  the  particular  Assemblies,  and  would  in  no  case 
be  subject  to  their  repeals  or  modifications,  and,  of  course,  the  pub- 
lic credit  would  never  be  dependent  on,  or  liable  to  bankruptcy 
by  the  humors  of  any  particular  Assembly.  In  an  Essay  on 
Finance,  which  I  design  soon  to  offer  to  the  public,  this  subject 
will  be  treated  more  fully.  (See  my  '  Sixth  Essay  on  Free  Trade 
and  Finance,'  p.  229.)  " 

This  scientific  writer  on  finance  and  trained  student  of  gov-  Prejudice  in 
ernment  and  law  knew  perfectly  well  that  no  federal  system  [*e  st^te^M^*" 
that  ever  existed  had  been  armed  with  the  power  to  tax;  he  ation deep- 
knew  perfectly  well  that  his  proposal  was  without  a  precedent  rooted- 
in  history ;  and  he  perfectly  understood  the  deep-rooted  pre- 
judice  in  favor  of  the  exclusive  power  of  the  states  to  tax,1  as 
that  prejudice  had  been  portrayed  in  Mr.  Eland's  statement 
of  January  27.   With  consummate  art  he  rested  his  argument 
in  favor  of  his  revolutionary  proposal  upon  the  absolute  neces- 
sity that  demanded  it.  He  condensed  it  all  into  a  narrow  com- 
pass when  he  admitted  that  the  "power  of  taxation"  is  "a  Webster's 
dreadful  engine  of  oppression,  tyranny,  and  injury,  when  ill  jkfenseofhis 
used;  yet  from  the  necessity  of  the  case  it  must  be  admitted,  of  federal 
...  On  the  whole,  I  take  it  that  the  very  existence  and  use  of  taxation- 
our  Union  essentially  depends  on  the  full  energy  and  final  effect 
of  the  laws  made  to  support  it,  and  therefore  I  sacrifice  all  other 
considerations  to  this  energy  and  effect,  and  if  our  Union  is  not 
worth  this  purchase,  we  must  give  it  up  —  the  nature  of  the 
thing  does  not  admit  of  any  other  alternative.    I  do  contend 

1  On  that  point  Madison  said:  "  It  the  Government  of  the  Union;  not- 
required  but  little  time,  after  taking  withstanding  the  urgent  demands  of 
my  seat  in  the  House  of  Delegates  in  the  Federal  Treasury,  the  glaring 
May,  1 784,  to  discover,  that  however  inadequacy  of  the  authorized  mode 
favorable  the  general  disposition  of  of  supplying  it,  the  rapid  growth  of 
the  State  might  be  towards  the  Con-  anarchy  in  the  Federal  system,  and 
federacy,  the  Legislature  retained  the  animosity  kindled  among  the 
the  aversion  of  its  predecessors  to  states  by  their  conflicting  regula- 
transfers  of  power  from  the  State  to  dons."  Madison  Papers,  ii,  694. 


146 


THE  AMERICAN  CONSTITUTION 


[CH. 


A  completely 
organized 
government 
a  necessity. 


Division  of  a 
federal  state 
into  three 
departments. 


Montesquieu 
and  single 
states. 


that  our  Union  is  worth  this  purchase."  Upon  that  vital  issue 
he  staked  all,  and  won  all.  The  moment  his  fundamental  and 
revolutionary  concept  as  to  taxation  was  accepted,  all  other 
changes  .followed  as  mere  corollaries.  So  soon  as  it  was  settled 
that  a  new  federal  fabric  was  to  be  created  with  an  independent 
power  of  taxation,  it  followed  that  such  a  government  must  be 
endowed  with  the  authority  to  execute  its  own  laws  and  decrees 
directly  upon  individuals  through  machinery  adequate  to  that 
end.  From  the  original  concept  necessarily  resulted  a  com- 
pletely organized  government  "with  the  usual  branches,  legis- 
lative, executive,  and  judicial;  with  the  direct  power  of  taxation 
and  the  other  usual  powers  of  a  government;  with  its  army, 
its  navy,  its  civil  service,  and  all  the  usual  apparatus  of  a  gov- 
ernment, all  bearing  directly  upon  every  citizen  of  the  Union 
without  any  reference  to  the  governments  of  the  several 
states."  l 

Webster's  first  great  step  forced  him  to  take  the  second, 
scarcely  less  momentous,  which  involved  the  division  of  the 
new  federal  state  into  three  departments  —  legislative,  execu- 
tive, and  judicial  —  something  never  heard  of  before  in  the 
world's  history.  The  idea  of  a  division  of  a  single  state  into 
three  departments  originated  in  England,  where  it  appeared  as 
the  unpremeditated  outcome  of  political  evolution.  As  a  scien- 
tific formula  the  maxim  as  to  the  division  of  powers  was  first 
expounded  by  Montesquieu,  who  accepted  it  in  the  qualified 
sense  in  which  it  existed  in  the  English  system.2  In  that  quali- 
fied sense  it  passed  into  the  first  American  state  constitutions. 
As  Madison  has  well  expressed  it,  "On  the  slightest  view  of 
the  British  Constitution  we  must  perceive  that  the  legislative, 
executive,  and  judiciary  departments  are  by  no  means  totally 
separate  and  distinct  from  each  other."  3  Speaking  of  the 
constitution  of  the  states  he  said :  "  If  we  look  into  the  constitu- 
tion of  the  several  states,  we  find,  that,  notwithstanding  the 
emphatical,  and,  in  some  instances,  the  unqualified  terms  in 
which  the  axiom  has  been  laid  down,  there  is  not  a  single  in- 
stance in  which  the  several  departments  of  power  have  been 
kept  absolutely  separate  and  distinct."  4  As  a  political  dogma 


1  These  are  the  attributes  which 
Mr.  Freeman  says  a  "composite 
state"  must  possess.  Federal  Govt., 
i,  II. 


*  Spirit  of  Laws,  bk.  xi,  ch.  6. 
'  Federalist,  no.  xlvi,  p.  335. 
«  Ibid.  337. 


VI.]  PELATIAH  WEBSTER'S  INVENTION  147 

it  was  first  formulated  in  this  country  by  George  Mason  in  the 
Bill  of  Rights  of  Virginia's  Constitution  of  1776,  which  provides  Definition  in 
"that  the  legislative  and  executive  powers  of  the  state  should  ^r|j™hat'ss  BiU 
be  separate  and  distinct  from  the  judiciary."    But  when  the 
time  came  for  Franklin  to  draft  our  first  Federal  Constitution, 
it  never  occurred  to  a  mind  even  as  acute  as  his  that  a  federal 
state  could  be  divided  into  three  departments  —  executive, 
legislative,  and  judicial  —  for  the  simple  reason  that  no  preced- 
ing federal  state  had  ever  been  so  divided.  In  obedience  to  pre- 
cedent the  total  federal  power  was  vested  and  confused,  under 
our  first  Constitution,  in  the  one-chamber  body  known  as  the  First  Constitu- 
Congress  of  the  Confederation.  As  Ford  has  well  expressed  it: 
"The  general  government,  called  into  existence  by  the  Articles  chamber 
of  Confederation,  which  had  been  modeled  on  the  Batavian  and  assembly. 
Helvetic  constitutions,  was  but  a  legislative  dependent  of  the 
state  legislatures,  with  scarcely  a  shadow  of  executive  or  judi- 
cial power,  and  was  therefore  equally  impotent  to  protect." 
Pelatiah  Webster  in  criticising  the  Articles  of  Confederation 
said:  "i.   It  blended  the  legislative  and  executive  powers 
together  in  one  body.  ...  9.  They  could  institute  no  general 
judiciary  powers."  He  was  to  have  the  honor  of  proposing,  for 
the  first  time  in  the  world's  history,  the  division  of  a  federal  A  bicameral 
government  into  three  departments  —  executive,  legislative,  j^* 
and  judicial.  After  stating  what  he  calls  "my  first  great  prin- 
ciple," after  stating  that  his  new  creation  must  "of  necessity 
be  vested  with  the  power  of  taxation,"  he  assumes  in  the 
second  place  that  it  must  be  divided,  as  the  several  state  gov- 
ernments are  divided,  into  three  departments,  the  separate 
organization  of  each  of  which  he  undertook  to  work  out.  Some 
writers,  unfamiliar  with  Webster's  work,  have  erroneously 
assumed  that  the  necessity  for  such  a  division  was  first  stated 
by  Jefferson,  who,  in  a  letter  to  Madison  written  from  Paris,  Jefferson's 
December  16,  1786,  used  this  language:   "To  make  us  one  indorsement- 
nation,  as  to  foreign  concerns,  and  keep  us  distinct  in  domestic 
ones,  gives  the  outline  of  the  proper  division  of  powers  be- 
tween the  general  and  particular  governments.  But  to  enable 
the  federal  head  to  exercise  the  powers  given  to  best  advant- 
age, it  should  be  organized  as  the  particular  ones  are  into  legis- 
lative, executive,  and  judiciary."  2  Nearly  four  years  before,  that 

1  Federalist,  Introd.,  p.  x. 

8  See  Jefferson's  Correspondence,  by  T.  J.  Randolph,  ii,  64,  65. 


148 


THE  AMERICAN  CONSTITUTION 


[Cn. 


A  President 
surrounded 
by  a  cabinet 
council. 


Ministers  to 
sit  in  Congress 
without  the 
right  to  vote. 


The  Swiss  ( 
Executive. 


idea  had  been  fully  worked  out  in  Webster's  paper  of  February 
1 6,  1783.  On  the  day  of  its  publication  Jefferson  was  at  Balti- 
more, and  two  weeks  later  he  came  for  a  visit  to  Philadelphia, 
after  the  voyage  he  was  then  contemplating  to  France  had 
been  abandoned. 

Webster  proposed  that  the  executive  power  should  be  vested 
in  a  President  surrounded  by  a  cabinet  or  council  composed  of 
the  "great  ministers  of  state,"  such  President  to  be  elected  by 
Congress,  as  the  President  of  France  is  now  elected.  "The 
financier  manages  the  whole  subject  of  revenues  and  expend- 
itures, the  Secretary  of  State  takes  knowledge  of  the  general 
policy  and  internal  government,  the  Minister  of  War  presides 
in  the  whole  business  of  war  and  defense,  and  the  Minister  of 
Foreign  Affairs  regards  the  whole  state  of  the  nation,  as  it 
stands  related  to,  or  connected  with,  all  foreign  powers.  I 
mention  a  Secretary  of  State  because  all  other  nations  have 
one,  and  I  suppose  we  shall  need  one  as  much  as  they,  and  the 
multiplicity  of  affairs  which  naturally  fall  into  his  office  will 
grow  so  fast  that  I  imagine  we  shall  soon  be  under  the  neces- 
sity of  appointing  one."  Later  on  he  says  the  "great  ministers 
of  state  .  .  .  shall  superintend  all  the  executive  departments 
and  appoint  all  executive  officers,  who  shall  ever  be  account- 
able to  and  removable  for  just  cause  by  them  or  Congress,  i.  e., 
either  of  them."  But  far  more  notable,  in  the  light  of  existing 
conditions,  is  this  declaration:  "I  do  not  mean  to  give  these 
great  ministers  of  state  a  negative  on  Congress,  but  I  mean  to 
oblige  Congress  to  receive  their  advices  before  they  pass  their 
bills,  and  that  every  act  shall  be  void  that  is  not  passed  with 
these  forms;  and  I  further  propose  that  either  house  of 
Congress  may,  if  they  please,  admit  the  said  ministers  to  be 
present  and  assist  in  the  debates  of  the  house,  but  without  any 
right  of  vote  in  the  decision."  ' 

Under  the  existing  Swiss  Constitution  the  executive  power  is 
vested,  not  in  the  President,  but  in  a  council  or  cabinet  of 
seven,  known  as  Bundesrath  or  Conseil  FedSral,  which  holds 
office  for  three  years.  The  Council  apportions  the  departments 
of  state  among  its  own  members,  and  "the  members  of  the 
Council  have  the  right  to  speak  and  make  proposals  in  either 
house  of  the  Federal  Legislature,  but  not  to  vote."  In  his 
famous  essay  upon  Presidential  Government,1  from  which  that 
1  Freeman's  Essays,  i,  400  sq.  (ed.  1871). 


VI.]  PELATIAH  WEBSTER'S  INVENTION  149 

quotation  is  taken,  Mr.  Freeman  says:  "The  Swiss  Constitu- 
tion has  several  points  of  likeness  with  that  of  America,  and  the 
constitution  of  the  two  houses  of  the  Federal  Legislature  is 
clearly  borrowed  from  the  American  model."  After  an  adverse  Ministers  do 
vote  has  occurred,  the  Swiss  Ministers  simply  return  to  their 
offices  and  go  on  with  their  work  until  the  end  of  their  terms,  vote. 
In  the  light  of  such  an  example  it  is  too  clear  for  argument  that 
we  may  adopt  so  much  of  the  English  cabinet  system  as  we 
need  and  at  the  same  time  reject,  as  Switzerland  does,  that 
part  of  it  which  is  not  applicable  to  a  federal  state  like  our  own. 
The  great  architect,  with  his  far-seeing  eye,  was  in  favor  of 
instituting  from  the  very  outset  a  closer  connection  than  now 
exists  between  the  executive  and  legislative  powers,  just  such 
a  connection  as  Switzerland  deemed  it  wise  to  introduce  in 
remodeling  her  federal  legislature  upon  our  own.  The  lack  of 
such  a  connection  is  the  root  of  the  evil  under  which  our  parlia- 
mentary system  is  now  breaking  down.  In  the  First  Congress, 
189  bills  were  introduced ;  in  the  Sixtieth,  about  40,000.  As  the 
legislative  business  of  the  country  has  thus  grown  in  extent  and 
complexity  the  pressure  upon  the  primitive  machinery  of  the 
House  of  Representatives  has  increased  until  at  last  a  crisis  has 
been  reached.  As  the  glut  of  legislative  timber  in  the  channel 
has  increased,  Mr.  Speaker  has  been  endowed  with  first  one  American 
abnormal  power  and  then  another  in  order  that  legislation  may  ^^  abnormal 
not  cease  altogether.  But  the  time  has  now  arrived  when  such  powers, 
empirical  devices  must  be  superseded  by  a  scientific  readjust- 
ment of  our  parliamentary  machinery  upon  the  basis  Webster 
originally  suggested.  Every  parliamentary  system  now  existing 
in  the  world,  except  our  own,  which  has  been  copied  from  the 
English,  has  reproduced  in  some  form  the  mainspring,  the 
driving  force  of  the  original  upon  which  its  harmony  chiefly 
depends.  That  mainspring  or  driving  force  is  embodied  in  the  Right  of  cabi- 
right  of  the  cabinet  to  appear  in  the  popular  chamber  for  the 
purpose  of  initiating  legislation  upon  the  great  questions  in 
which  the  nation  is  vitally  concerned,  and  then  of  driving  such 
legislation  to  a  final  vote.  The  lack  of  that  practical  business 
expedient,  which  everybody  except  ourselves  enjoys,  and  which 
the  vast  and  rapidly  swelling  volume  of  our  legislative  business 
urgently  demands,  has  produced  the  abnormal,  almost  revo- 
lutionary condition  under  which  we  now  groan.  The  author 


150  THE  AMERICAN  CONSTITUTION  [Cn. 

has  been  contending  for  years  that  the  whole  difficulty  may  be 
removed,  without  a  constitutional  amendment,  by  a  brief  act 
of  Congress,  and  a  modification  of  existing  parliamentary  rules 
to  be  made  upon  the  basis  of  Webster's  original  suggestion,  sup- 
plemented by  the  Swiss  experiment  now  in  successful  opera- 
tion.1 

Webster  first         Just  as  the  state  constitutions  admonished  Webster  to  split 
two-chamber      t^ie  new  Federal  Government  into  three  departments,  execu- 
Federal  Con-      tive,  legislative,  and  judicial,  the  bicameral  state  legislatures 
admonished  him  to  split  the  one-chamber  Congress  of  the  Con- 
federation into  an  upper  and  a  lower  house.    In  constructing 
that  body  on  the  one-chamber  plan,  Franklin  was  content  to 
follow  a  model  two  thousand  years  old,  but  in  criticising  his 
work  Webster  said:  "This  body,  viz.,  Congress,  consisted  of 
but  one  house,  without  any  check  upon  their  resolutions."  As 
a  remedy  he  proposed  "that  the  Congress  shall  consist  of  two 
chambers,  an  upper  and  a  lower  house,  or  senate  and  commons, 
with   the  concurrence  of  both  necessary  to  every  act;  and 
that  every  state  send  one  or  more  delegates  to  each  house. 
His  reasons  for  This  will  subject  every  act  to  two  discussions  before  two 
cedentecT"        distinct  chambers  of  men  equally  qualified  for  the  debate, 
change.  equally  masters  of  the  subject,  and  of  equal  authority  in  the 

decision.  These  two  houses  will  be  governed  by  the  same 
natural  motives  and  interests,  viz.,  the  good  of  the  Common- 
wealth, and  the  approbation  of  the  people.  Whilst  at  the  same 
time,  the  emulation  naturally  arising  between  them  will  induce 
a  very  critical  and  sharp-sighted  inspection  into  the  motives  of 
each  other.  Their  different  opinions  will  bring  on  conferences 
between  the  two  houses,  in  which  the  whole  subject  will  be 
exhausted  in  arguments  pro  and  con,  and  shame  will  be  the 
portion  of  obstinate,  convicted  error.  ...  I  am  not  of  opinion 
that  bodies  of  elective  men,  which  usually  compose  Parlia- 
ments, Diets,  Assemblies,  Congresses,  etc.,  are  commonly  dis- 
honest; but  I  believe  it  rarely  happens  that  there  are  not 
designing  men  among  them;  and  I  think  it  would  be  much 
more  difficult  for  them  to  unite  their  partisans  in  two  houses, 
and  corrupt  or  deceive  them  both,  than  to  carry  on  their 
designs  where  there  is  but  one  unalarmed,  unapprehensive 

1  See   the   author's   article,    en-      ers,"  in  the  North  American  Review 
titled  "The  Speaker  and  his  Pow-      for  October,  1908. 


VI.]  PELATIAH   WEBSTER'S  INVENTION  151 

house  to  be  managed."  Such  were  the  terms  in  which  the 
world  was  first  addressed  in  favor  of  a  federal  assembly  of  two 
chambers  instead  of  one.  In  commenting  upon  the  manner  in 
which  the  members  should  be  chosen,  Webster  said:  "The 
delegates  which  are  to  form  that  august  body,  which  are  to  How  the  dele- 
hold  and  exercise  the  supreme  authority,  ought  to  be  ap-  sates  were  to 
pointed  by  the  States  in  any  manner  they  please ;  in  which  they 
should  not  be  limited  by  any  restrictions;  their  own  dignity 
and  the  weight  they  will  hold  in  the  great  public  councils,  will 
always  depend  on  the  abilities  of  the  persons  they  appoint  to 
represent  them  there."  l  One  of  the  worst  provisions  in  the 
Articles  of  Confederation  was  that  which  compelled  a  member 
to  retire  from  Congress  after  he  had  served  three  years.  At  the 
height  of  his  usefulness  Madison  was  forced  to  quit  on  that 
account.  In  denouncing  that  rule  Webster  said:  "I  have  no  Old  one-term 
objection  to  the  states  electing  and  recalling  their  delegates  as  ^nced 
often  as  they  please,  but  think  it  hard  and  very  injurious  both 
to  them  and  the  Commonwealth  that  they  should  be  obliged 
to  discontinue  them  after  three  years'  service,  if  they  find 
them  on  that  trial  to  be  men  of  sufficient  integrity  and  abil- 
ities; a  man  of  that  experience  is  certainly  more  qualified  to 
serve  in  the  place  than  a  new  member  of  equal  good  character 
can  be ;  experience  makes  perfect  in  every  kind  of  business  — 
old  experienced  statesmen  of  tried  and  approved  integrity  and 
abilities  are  a  great  blessing  to  a  state  —  they  acquire  great 
authority  and  esteem  as  well  as  wisdom,  and  very  much  con- 
tribute to  keep  the  system  of  government  in  good  and  salutary 
order ;  and  this  furnishes  the  strongest  reason  why  they  should 
be  continued  in  the  service,  on  Plato's  great  maxim  that  '  the 
man  best  qualified  to  serve,  ought  to  be  appointed.'"  Finally 
he  said:  "It  is  necessary  that  Congress  should  have  all  usual  Congress  to 
and  necessary  powers  of  self-preservation  and  order,  e.  g.,  to  Jj  nJl1 
imprison  for  contempt,  insult,  or  interruption,  etc.,  and  to  powers, 
expel  their  own  members  for  due  causes,  among  which  I  would 
rank  that  of  non-attendance  on  the  house,  or  partial  attend- 
ance without  such  excuse  as  shall  satisfy  the  house."  With  a 

1  Again  he  says  on  that  subject:  they  have  the  confidence  of  their 

"As  Congress  will  ever  be  composed  several  states  and  understand  well 

of  men  delegated   by  the  several  the  policy  and  present  condition  of 

states,  it  may  well  be  supposed  that  them." 


152  THE  AMERICAN  CONSTITUTION  [CH. 

touch  of  grim  humor  he  adds:  "The  consultations  and  decis- 
ions of  national  councils  are  so  very  important  that  the  fate  of 
millions  depends  on  them,  therefore  no  man  ought  to  speak  to 
such  assemblies  without  considering  that  the  fate  of  millions 
hangs  on  his  tongue.  ...  A  man  must  therefore  be  most 
inexcusable  who  is  either  absent  during  debates,  or  sleeps,  or 
whispers,  or  catches  flies  during  the  argument,  and  just  rouses 
when  the  vote  is  called  to  give  his  yea  or  nay  to  the  weal  or  woe 
of  a  nation."  Like  a  steam  hammer  which  is  so  nicely  adjusted 
that  it  may  either  crush  a  mass  of  iron  or  crack  the  crystal  of  a 
watch,  this  august  intellect  could  either  solve  the  gravest  and 
most  far-reaching  of  human  problems,  or  discuss  with  pains- 
taking minuteness  commonplace  details. 

Federal  While  the  Articles  of  Confederation  did  not  attempt  to 

outline?  create  a  federal  judiciary,  the  ninth  Article  did  provide  that 

4 'the  United  States  in  Congress  assembled  shall  also  be  the 
last  resort  on  appeal  in  all  disputes  and  differences  now  sub- 
sisting or  that  hereafter  may  arise  between  two  or  more  states 
concerning  boundary,  jurisdiction,  or  any  other  cause  what- 
ever,"—  a  jurisdiction  inherited  from  the  Privy  Council.1 
"Before  the  Revolution,  the  British  Privy  Council  had  adjudi- 
cated on  certain  questions  arising  betwen  colony  and  col- 
ony." 2  Several  controversies  between  the  states  were  actually 
brought  before  Congress  for  adjudication  under  the  foregoing 
Article;  and  in  two  of  them — Pennsylvania  v.  Connecticut 
(1781)  and  Massachusetts  v.  New  York  (1784)  —  the  agents  of 
the  contending  states  were  directed  to  "appoint  by  joint  con- 
sent commissioners  or  judges  to  constitute  a  court  for  hearing 
and  determining  the  matter  in  question,  agreeably  to  the  9th 
Article  of  the  Confederation,  which  they  succeeded  in  doing."  3 
An  important  count  of  Webster's  indictment  against  the  Arti- 
cles of  Confederation  was  that  "they  could  institute  no  gen- 
eral judiciary  powers."  That  difficulty  he  proposed  to  remove 

1  In  Rhode  Island  v.  Massachu-  their  boundaries,  which  arose  under 

setts,  12  Peters,  723,  the  Court  said:  their   respective   charters  and  had 

"It  is  a  part  of  the  public  history  continued  from  the  first  settlement 

of  the  United  States,  of  which  we  of  the  colonies." 
cannot  be  judicially  ignorant,  that          *  Maine,  Popular  Government,  p. 

at  the  adoption  of  the  Constitution  217,  note  7. 

there    were   existing    controversies          •  See  Taylor,  Jur.  and  Pro.  Su- 

between  eleven    states    respecting  preme  Court  of  the  United  States,  9. 


VI J  PELATIAH  WEBSTER'S  INVENTION  153 

by  creating  a  Supreme  Court,  and  such  inferior  courts  of  law  A  Supreme 
and  equity  as  the  necessities  of  the  country  might  require.  He  ^^^o^ 
outlined  the  Supreme  Court,  with  jurisdiction  both  original  and  original  and 
appellate,  in  these  terms:  "That  the  supreme  authority  should  aPPellate- 
be  vested  with  powers  to  terminate  and  finally  decide  contro- 
versies arising  between  different  states,  I  take  it,  will  be  uni- 
versally admitted,  but  I  humbly  apprehend  that  an  appeal 
from  the  first  instance  of  trial  ought  to  be  admitted  in  causes 
of  great  moment,  on  the  same  reasons  that  such  appeals  are 
admitted  in  all  the  states  of  Europe.  It  is  well  known  to  all 
men  versed  in  courts,  that  the  first  hearing  of  a  cause  rather 
gives  an  opening  to  that  evidence  and  reason  which  ought  to 
decide  it,  than  such  a  full  examination  and  thorough  discus- 
sion, as  should  always  precede  a  final  judgment  in  causes  of 
national  consequence.  A  detail  of  reasons  might  be  added, 
which  I  deem  it  unnecessary  to  enlarge  on  here."  Thus 
emerged  the  splendid  conception  of  the  Supreme  Court  of  the 
United  States  as  it  now  exists,  armed  not  only  with  original 
jurisdiction  "to  terminate  and  finally  decide  controversies 
arising  between  different  states,"  but  also  with  an  appellate 
jurisdiction  "in  causes  of  great  moment,  on  the  same  reasons 
that  such  appeals  are  admitted  in  all  the  states  of  Europe." 
In  due  time  the  Court,  with  a  double  jurisdiction  thus  defined, 
held  that  Congress  is  powerless  to  reapportion  the  original  and 
appellate  jurisdictions  according  to  the  will  of  that  body.1  As 
to  the  inferior  federal  courts  he  contented  himself  with  this  Inferior  fed- 
declaration:  "To  these  I  would  add  Judges  of  Law  and  Chan-  J 
eery ;  but  I  fear  they  will  not  be  very  soon  appointed  —  the  equity. 
one  supposes  the  existence  of  law,  the  other  of  equity  —  and 
when  we  shall  be  altogether  convinced  of  the  absolute  neces- 
sity of  the  real  and  effectual  existence  of  both  of  these,  we  shall 
probably  appoint  proper  heads  to  preside  in  these  departments." 
When  our  federal  judicial  system,  as  designed  by  Webster, 
found  a  real  expounder  in  Marshall,  one  of  the  gravest  tasks  he 
was  called  upon  to  perform  was  that  involved  in  the  establish- 
ment of  the  constitutional  supremacy  of  the  Supreme  Court 
over  judgments  of  state  courts  denying  federal  rights.  In  the 
great  case  of  Cohens  v.  Virginia,2  presenting  the  solemn  refusal 

1  Marbury  v.  Madison,  I  Cranch,  138. 

2  6  Wheat.  264. 


154 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Webster 
defined 
supremacy 
of  federal 
law. 


Remedy  when 
resisted  by 
force  in  any 
state. 


Reserved 
rights  of  states 
carefully 
guarded. 


of  the  Virginia  Court  of  Appeals  to  obey  the  mandate  of  the 
Supreme  Court  of  the  United  States,  the  ultimate  question 
involved  was  the  supremacy  of  federal  law.  It  is  hard  not  to 
marvel  when  we  see  how  perfectly  Webster  anticipated  and  pro- 
vided for  that  very  contingency  when  he  said:  "  i.  No  laws  of 
any  state  whatever,  which  do  not  carry  in  them  a  force  which 
extends  to  their  effectual  and  final  execution,  can  afford  a  cer- 
tain or  sufficient  security  to  the  subject.  This  is  too  plain  to 
need  any  proof.  2.  Laws  or  ordinances  of  any  kind  (especially 
of  august  bodies  of  high  dignity  and  consequence),  which  fail  of 
execution,  are  much  worse  than  none.  They  weaken  the  gov- 
ernment, expose  it  to  contempt,  destroy  the  confidence  of  all 
men,  native  and  foreigners,  in  it,  and  expose  both  aggregate 
bodies  and  individuals  who  have  placed  confidence  in  it  to 
many  ruinous  disappointments  which  they  would  have  escaped 
had  no  law  or  ordinance  been  made;  therefore,  3.  To  appoint  a 
Congress  with  powers  to  do  all  acts  necessary  for  the  support 
and  uses  of  the  Union ;  and  at  the  same  time  to  leave  all  the 
states  at  liberty  to  obey  them  or  not  with  impunity,  is,  in 
every  view,  the  grossest  absurdity.  .  .  .  Further  I  propose, 
that  if  the  execution  of  any  act  or  order  of  the  supreme  authority 
shall  be  opposed  by  force  in  any  of  the  states  (which  God  forbid) , 
it  shall  be  lawful  for  Congress  to  send  into  such  state  a  sufficient 
force  to  suppress  it.  On  the  whole,  I  take  it  that  the  very  exist- 
ence and  use  of  our  Union  essentially  depends  on  the  full 
energy  and  final  effect  of  the  laws  made  to  support  it,  and  there- 
fore I  sacrifice  all  other  considerations  to  this  energy  and  effect, 
and  if  our  Union  is  not  worth  this  purchase,  we  must  give  it 
up — the  nature  of  the  thing  does  not  admit  of  any  other 
alternative." 

Webster  was  no  more  eager  to  arm  his  new  federal  creation 
with  supremacy  in  the  event  that  its  laws  or  mandates  should  be 
defied  by  the  states  than  he  was  to  guard  against  its  intrusion 
such  rights  as  the  states  reserved  to  themselves.  Nothing 
could  be  more  explicit  on  that  subject  than  these  declarations: 
"II.  But  now  the  great  and  most  difficult  part  of  this  weighty 
subject  remains  to  be  considered,  viz.,  how  these  supreme 
powers  are  to  be  constituted  in  such  manner  that  they  may  be 
able  to  exercise  with  full  force  and  effect  the  vast  authorities 
committed  to  them  for  the  good  and  well  being  of  the  United 


VI.]  PELATIAH  WEBSTER'S  INVENTION  155 

States,  and  yet  be  so  checked  and  restrained  from  exercising 
them  to  the  injury  and  ruin  of  the  states  that  we  may  with 
safety  trust  them  with  a  commission  of  such  vast  magnitude  — 
and  may  Almighty  Wisdom  direct  my  pen  in  this  arduous  dis- 
cussion. ...  I  propose  further  that  the  powers  of  Congress, 
and  all  the  other  departments  acting  under  them,  shall  all  be 
restricted  to  such  matters  only  of  general  necessity  and  utility 
to  all  the  states  as  cannot  come  within  the  jurisdiction  of  any 
particular  state,  or  to  which  the  authority  of  any  particular 
state  is  not  competent,  so  that  each  particular  state  shall  enjoy 
all  sovereignty  and  supreme  authority  to  all  intents  and 
purposes,  excepting  only  those  high  authorities  and  powers  by 
them  delegated  to  Congress  for  the  purposes  of  the  general 
union."   Let  us  place  in  juxtaposition  with  that  ample  state-  Webster's 
ment  the  meagre  terms  of  the  Tenth  Amendment,  which  statementfar 
declares  that  "the  powers  not  delegated  to  the  United  States  than  Tenth 
by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are  Amendment, 
reserved  to  the  states  respectively,  or  to  the  people."  According 
to  Webster's  conception  of  it  the  new  federal  system  was  to  be 
one  of  delegated  and  strictly  limited  powers,  and  yet  one  abso- 
lutely supreme  within  the  limits  of  its  jurisdiction  as  ultimately 
defined  by  its  own  tribunals.    From  the  very  nature  of  such  a 
system,  which  has  no  prototype  in  history,  was  deduced  the 
judge-made  right  to  declare  void  a  national  law  when  the 
federal  courts  conclude  that  such  a  law  is  in  conflict  with  the 
Constitution  itself.    The  invincible  logic  employed  by  Mar- 
shall in  the  first  assertion  of  that  right  rested  necessarily  on  the 
admission  that  it  is  a  mere  deduction  from  the  general  nature 
of  a  system  of  government  whose  Constitution  does  not  under- 
take to  grant  it  in  express  terms. 

Thus  with  a  fullness  and  lucidity  that  could  hardly  have  Great 
been  surpassed  in  a  first  effort,  Pelatiah  Webster,  on  February  invention 

f  ,        ^     ,      synchronizes 

16,  1783,  just  four  years  and  three  months  before  the  Fed-  with  failure 
eral  Convention  of  1787  met,  gave  to  the  world,  as  his  inven-  of  quota 
tion,  the  entirely  new  plan  of  federal  government  now  embod- 
ied in  the  existing  Constitution  of  the  United  States.    This 
greatest  of  all  contributions  to  modern  political  science  was 
laid  at  the  doors  of  the  Congress  of  the  Confederation  just  at 
the  moment  when  a  final  judgment  of  condemnation  was  about 
to  be  pronounced  against  the  old  quota  system  as  a  practical 


156 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Lack  of  power 
in  Congress  to 
levy  a  tax  on 
imports. 


means  of  raising  revenue.  The  cessation  of  hostilities  with 
Great  Britain,  followed  as  it  was  by  the  signing  of  the  pre- 
liminary articles  of  peace  at  Paris,  January  20,  1783,  had 
brought  the  financiers  of  the  Revolution  face  to  face  with  the 
mighty  problem  of  providing,  without  any  visible  or  reliable 
means,  for  the  debts  that  represented  the  cost  of  victory.  In 
estimating  that  cost  Congress  said:  "The  amount  of  these 
debts,  as  far  as  they  can  now  be  ascertained,  is  forty- two  mil- 
lions three  hundred  and  seventy-five  dollars.  .  .  .  The  amount 
of  the  annual  interest  is  computed  to  be  two  millions  four  hun- 
dred and  fifteen  thousand  nine  hundred  and  fifty-six  dollars. 
Funds,  therefore,  which  will  certainly  and  punctually  produce 
this  sum  at  least  must  be  provided."  In  attempting  to  provide 
such  funds  Congress,  after  frankly  admitting  the  inadequacy 
of  the  quota  system,  appealed  to  the  states  so  to  amend  the 
Articles  of  Confederation  as  to  permit  Congress  to  levy  a  tax 
on  imports,  for  the  term  of  twenty-five  years,  in  such  a  way  as 
to  produce  annually  the  sum  of  "nine  hundred  and  fifteen 
thousand  nine  hundred  and  fifty-six  dollars.  .  .  .  The  residue 
of  the  computed  interest  is  one  million  five  hundred  thousand 
dollars,  and  is  referred  to  the  states  to  be  provided  for  by  such 
funds  as  they  may  judge  most  convenient."  l  Since  February 
3,  1781,  Congress  had  been  imploring  the  states  to  make  such 
a  concession;  and  its  prayer  would  have  been  answered  had 
it  not  been  for  the  action  of  Rhode  Island  whose  assembly  on 
November  I,  1782,  unanimously  refused  to  concede  to  the 
Confederation  the  right  to  raise  revenue  by  duties  on  import- 
Rhode  Island's  ations.  That  refusal  was  based  on  three  grounds:  (i)  because 
such  an  impost  would  bear  hardest  on  the  commercial  states, 
particularly  upon  Rhode  Island ;  (2)  because  it  would  involve 
the  introduction  of  officers  unknown  to  the  Constitution; 
(3)  because  a  revenue  for  the  expenditure  of  which  Congress  is 
not  to  be  accountable  to  the  states  would  render  that  body 
independent  of  its  constituents,  and  would  be  dangerous  to  the 
liberties  of  the  United  States.2  Thus  was  revealed  the  terrible 
power  of  a  single  state  to  destroy  any  attempt  to  create  a  uni- 
form commercial  or  financial  system  by  an  arbitrary  or  selfish 


veto. 


1  Madison   Papers,    i,  Appendix 
no.  2,  vi-viii. 

2  Bradford,  the  Speaker,  to  the 


President  of  Congress,  Nov.  30, 
1782.  Records  of  Rhode  Island,  ix, 
682,  683,  684. 


VI.]  PELATIAH  WEBSTER'S  INVENTION  157 

veto.  From  that  obstinate  and  destructive  attitude  Rhode 
Island  never  receded,  despite  Washington's  circular  letter  to 
the  governors  of  all  the  states,1  urging  the  necessity  of  granting 
to  Congress  some  power  to  provide  a  national  revenue,  and 
despite  Congress's  frantic  appeal  to  the  states,  in  the  final  reso- 
lution of  April  1 8,  1 783,2  for  power  to  levy  specific  duties  on 
certain  enumerated  articles,  and  five  per  cent  on  others.  Even 
the  imploring  answer  made  by  Hamilton,  Madison,  and  Fitz- 
simons  to  Rhode  Island's  objections,  was  all  in  vain.3  Her  for- 
tunate refusal  to  listen  to  reason  was  the  death  knell  to  the  Death  knell  of 
Confederation.  After  she  succeeded  in  defeating  the  final  C 
attempt  to  secure  a  revenue  to  be  derived  from  imports  as 
embodied  in  the  resolution  of  April  18,  1783,  —  to  which  some 
of  the  states  gave  an  unqualified,  and  others  a  conditional 
approval,  —  compliance  with  the  requisitions  grew  more  and 
more  lax,  until  at  last  in  1786  a  committee  of  Congress  reported 
that  any  further  reliance  on  requisitions  would  be  "dishonor- 
able to  the  understanding  of  those  who  entertain  such  con- 
fidence." 4  The  last  stage  of  the  expiring  system  has  already 
been  depicted  in  the  despairing  words  of  Hamilton,  who  said  in 
the  speech  delivered  in  the  legislature  of  New  York  in  Febru- 
ary, 1787:  "  Connecticut  and  New  Jersey  have  almost  formally 
declined  paying  any  longer.  The  ostensible  motive  is  the  non- 
concurrence  of  this  state  in  the  impost  system.  The  real  one 
must  be  conjectured  from  the  fact.  Pennsylvania,  if  I  under- 
stand the  scope  of  some  late  resolutions,  means  to  discontinue 
the  interest  she  pays  upon  her  assumption  to  her  own  citizens ; 
in  which  case  there  will  be  little  coming  from  her  to  the  United 
States.  This  seems  to  be  bringing  matters  to  a  crisis.  The 
pecuniary  support  of  the  Federal  Government  has  of  late  de- 
volved almost  entirely  upon  Pennsylvania  and  New  York.  If 

1  He  declared  that  it  was  the  duty  that  Congress  are  under  of   repre- 
of  the  states,  without  "hesitating  a  senting  to  the  immediate  and  im- 
single  moment,"  to  give  their  sane-  partial  consideration  of  the  several 
tion  to  the  act  of  Congress  establish-  states    the    utter   impossibility    of 
ing  a  revenue  for  the  United  States.  maintaining    and    preserving     the 

2  Madison  Papers,  i,  447.  faith  of  the  Federal  Government  by 
*  Ibid.,  Appendix  no.  3,  xii-xix.      temporary  requisitions  on  the  states, 
4  Journals  of  Congress,  iv,  619.      and  the  consequent  necessity  of  an 

In  that  report  the  committee  said  early  and  complete  accession  of  all 
they  were  "seriously  impressed  the  states  to  the  revenue  system  of 
with  the  indispensable  obligation  the  eighteenth  of  April,  1783." 


158 


THE  AMERICAN  CONSTITUTION 


[Cn. 


A  benefactor 
in  disguise. 


Continental 
Congress  in 
1783; 


its  decadence. 


Pennsylvania  refuses  to  continue  her  aid,  what  will  be  the  situa- 
tion of  New  York?  Are  we  willing  to  be  the  Atlas  of  the 
Union?  or  are  we  willing  to  see  it  perish?"  In  bringing  about 
that  desperate  condition  of  things  which  forced  the  meeting  of 
the  Federal  Convention  of  1787,  Rhode  Island  was  really  a 
benefactor  in  disguise.  In  demonstrating  through  her  selfish 
and  irrevocable  veto  the  worthlessness  and  danger  of  the 
ancient  quota  system  she  paved  the  way  for  the  acceptance  of 
the  epoch-making  invention  of  February  16,  1783,  which  was 
destined  to  revolutionize  federalism  as  a  system  of  govern- 
ment not  only  in  this  country  but  throughout  the  world. 

As  that  invention  was  finally  presented  to  the  Federal  Con- 
vention by  three  brilliant  young  members  of  the  Congress  of 
the  Confederation, it  will  be  helpful  to  glance  at  the  character 
and  composition  of  that  body  at  the  time  Pelatiah  Webster 
published  his  entirely  new  plan  of  federal  government  at  its 
very  doors.1  The  record  of  a  vote  taken  on  February  14,  1783, 
shows  that  the  following  delegates  were  then  present:  New 
Hampshire,  Gilman  and  White;  Massachusetts,  Holten  and 
Gorham;  Rhode  Island,  Collins  and  Arnold;  Connecticut, 
Wolcott  and  Dyer;  New  York,  Floyd  and  Hamilton;  New 
Jersey,  Boudinot,  Elmer,  and  Condict;  Pennsylvania,  MifHin, 
Fitzsimons,  Wilson,  and  Montgomery;  Maryland,  Carroll; 
Virginia,  Jones,  Madison,  Bland,  Lee,  and  Mercer ;  North  Car- 
olina, Hawkins  and  Williamson;  South  Carolina,  Rutledge, 
Ramsay,  Izard,  and  Gervais.  Certainly  no  public  assembly 
was  ever  in  greater  need  of  a  guiding  mind  or  a  guiding  hand. 
At  the  date  in  question  the  Congress  was  fading  surely,  and  not 
very  slowly,  into  the  shadow  of  a  name ;  its  decadence  was  al- 
ready so  marked  that  men  of  the  first  class  were  with  difficulty 

1  The  Congress  was  then  sitting  between  the  doors  of  the  State 
at  Philadelphia  in  the  chamber  in  House  from  Chestnut  Street  above 
the  State  House  since  known  as  Fifth,  where  Congress  was  sitting 


Independence  Hall.  The  title-page 
of  Pelatiah  Webster's  "Disserta- 
tion" shows  that  it  was  "Printed 
and  sold  by  T.  Bradford,  in  Front 
Street,  three  Doors  below  the  Coffee 
House,  MDCCLXXXIII."  The  Coffee 
House  "was  known  as  the  London 
Coffee  House,  at  the  corner  of  Front 
Street  and  High  Street  (now  Mar- 
ket Street).  The  exact  distance 


in  1783  and  the  Coffee  House  re- 
ferred to  in  the  Bradford  Imprint, 
was  five  blocks,  four  of  them  being 
on  Chestnut  Street,  and  one  of  them 
being  the  distance  between  High 
Street  and  Chestnut  Street."  For 
these  facts  I  am  indebted  to  the 
kindness  of  Hampton  L.  Carson, 
Esq.,  the  eminent  Philadelphia 
jurist. 


VI.]  PELATIAH  WEBSTER'S  INVENTION  159 

persuaded  to  permit  themselves  to  be  chosen  members  of  it; 
long  after  the  day  named  for  the  commencement  of  a  session 
no  quorum  would  be  present  until  at  times  it  seemed  as  if  the 
government  would  become  simply  non-existent;  delegations 
from  certain  states  often  failed  to  attend  altogether.1  On  Feb- 
ruary 21,  1783,  it  was  "resolved,  that  it  be  recommended  to 
the  states  of  Delaware,  Maryland  and  Georgia  to  send  dele- 
gates immediately  to  the  Congress,  and  to  each  state  in  the 
Union,  to  keep  up  a  constant  representation."  That  resolu- 
tion was  prompted  by  the  fact  that  the  divisions  during  the 
earlier  part  of  that  month  had  disclosed  that  only  twenty-seven  Only  twenty- 
delegates  were  present  from  eleven  states.2  Of  the  fourteen  g^f^" 
Presidents  of  the  Congress  between  1774  and  1789  only  Ran-  eleven  states, 
dolph,  Hancock,  and  Laurens  are  remembered  in  a  popular 
way  in  that  capacity;  Jay,  St.  Clair,  Mifflin,  and  Lee  are 
remembered  for  other  things;  while  Griffin,  Hanson,  Gorham, 
and  Boudinot  are  scarcely  remembered  at  all,  except  by  special 
students  of  American  history.3  The  last  named  was  President 
on  June  21,  1783,  when  Congress,  after  being  driven  from 
Philadelphia  by  a  handful  of  drunken  soldiers,  fled  across  the 
river  to  Princeton  where  the  college  offered  shelter.  Thence  Itswander. 
it  skipped  about  to  Annapolis,  to  Trenton,  to  New  York,4  ings. 

1  Morse,  Life  of  Hamilton,  I,  96,  met  on  Saturday  the  27th  of  that 
97,  202.  month,  and  on  the  same  day  ad- 

2  MS.  Records  of  the  Continental  journed  to  meet  at   York   in  the 
Congress.  same  state,  at  which  place  it    as- 

1  See  The  Critical  Period,  99.  sembled  on  Tuesday  the  3Oth  of  the 
4  The  Congress  of  the  Revolution  same  month.  It  remained  in  York 
first  met  in  Philadelphia,  Pa.,  on  until  Saturday,  June  27,  1778,  when, 
September  5,  1774,  and  remained  in  view  of  the  evacuation  of  Phil- 
there  until  Wednesday,  December  adelphia  by  the  British,  it  adjourned 
12,  1776,  when  it  adjourned  to  Balti-  to  that  city,  where  it  held  its  next 
more,  Md.,  in  consequence  of  the  session  on  Thursday,  July  2,  1778. 
approach  of  the  British  army.  It  It  remained  in  Philadelphia  until 
met  in  Baltimore  Friday,  December  June  21,  1783,  when  in  consequence 
20,  1776,  and  remained  there  until  of  the  menacing  demonstration  to- 
February  27,  1777,  when  it  ad-  ward  it  by  the  unpaid  soldiers  of  the 
journed  to  Philadelphia,  where  it  Revolutionary  Army,  it  adjourned 
met  on  the  4th  of  the  next  March  to  meet  either  at  Trenton  or  Prince- 
and  adjourned  from  day  to  day  until  ton,  N.  J.,  as  the  President  might 
the  1 2th  of  that  month.  OntheiSth  direct.  Upon  the  summons  of  the 
of  September,  1777,  military  neces-  President  it  met  at  Princeton  on  the 
sity  again  led  to  its  removal  from  soth  of  June  and  continued  to  hold 
Philadelphia.  It  thereupon  ad-  its  sessions  there  until  November  4, 
journed  to  Lancaster,  Pa.,  where  it  1783.  On  November  26, 1783,  it  met 


i6o 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Madison, 
Hamilton,  and 
Pinckney. 


until  it  became  a  laughing-stock,  and  its  wanderings  the  sub- 
ject of  newspaper  squibs.  And  yet,  despite  its  weakness,  irre- 
solution, and  gloom,  this  nondescript  assembly  —  so  rich  in 
duties  and  responsibilities  and  so  poor  in  powers  and  resources 
—  was  blessed  during  the  critical  period  by  the  presence  of 
three  rising  young  statesmen  who  would  have  adorned  any  age 
or  any  country.  James  Madison  had  taken  his  seat  as  a  work- 
ing member  as  early  as  March  20,  1780;  Alexander  Hamilton 
came  to  divide  the  honors  with  him  in  November,  1782; 
Charles  Pinckney  did  not  arrive  until  November,  1784.  On 
the  day  Pelatiah  Webster  laid  his  wholly  novel  plan  of  a  fed- 
eral government  at  the  doors  of  Congress,  Madison,  then 
thirty-two,  and  Hamilton,  then  twenty-six,  were  present  at 
Philadelphia  deeply  absorbed  in  the  discussion  of  the  problem 
of  problems  it  was  destined  to  solve.  No  biographer  of  Madi- 
son, Hamilton,  or  Pinckney  has  ever  claimed  that,  down  to 
that  time  or  for  at  least  four  years  thereafter,  either  one  of 
them  ever  proposed  or  formulated  any  kind  of  a  new  constitu- 
tion. And  certainly  prior  to  February  16,  1783,  no  one  of  them 
had,  by  any  public  act  in  Congress,  attempted  to  bring  about 
the  calling  of  a  federal  convention  armed  with  the  power  to 
make  a  new  constitution.  Such  were  the  conditions  under 
which  Madison  and  Hamilton  were  brought  face  to  face  at 
Philadelphia  with  the  bold  innovator  who,  after  proposing  as 
early  as  1781  that  a  "Continental  Convention"  should  be 
called  for  the  making  of  a  new  constitution,  gave  to  the  world, 


in  Annapolis,  Md.,  where  it  re- 
mained until  June  3,  1784.  It  next 
met  in  Trenton,  N.  J.,  from  Novem- 
ber i,  1784,  until  December  24, 
1784,  when  it  adjourned  to  meet  in 
the  city  of  New  York.  It  met  in 
New  York  City  on  January  n,  1785, 
and  continued  to  meet  there  until 
March  4,  1789,  when  it  was  suc- 
ceeded by  the  Congress  provided  for 
in  the  Constitution.  The  Congress 
provided  for  by  the  Constitution 
first  met  in  New  York  City.  The 
first  Wednesday,  which  was  the  4th 
day  of  March,  1789,  was  the  day 
appointed  by  the  resolution  of  Sep- 
tember 12,  1788,  for  "commenc- 
ing proceedings"  by  the  Congress 


provided  for  by  the  Constitution, 
and  several  members  of  each  house 
were  present  on  that  day,  but  no 
quorum  appeared  in  the  House  of 
Representatives  until  the  1st  of 
April,  1789,  nor  in  the  Senate  until 
the  6th  of  that  month.  On  Decem- 
ber 6,  1790,  Congress  removed  to 
Philadelphia,  chosen  by  the  act  of 
July  1 6,  1790,  as  the  temporary  seat 
of  government  until  its  removal  to 
the  District  of  Columbia  where  Con- 
gress actually  met  for  the  first  time 
on  November  21,  1800,  in  the  north 
wing  of  the  Capitol,  then  the  only 
completed  part  of  the  building.  See 
Origin  and  Government  of  the  Dis- 
trict of  Columbia,  12-13,  57.  102. 


VI J  PELATIAH  WEBSTER'S  INVENTION  l6l 

as  his  invention,  an  entirely  new  plan  of  federal  government 
worked  out  in  detail. 

There  can  be  no  question  that  Webster  and  Hamilton  pos-  Webster  and 
sessed  the  most  original  and  creative  minds  of  that  epoch,  so  ^^Ssand 
far  as  finance  and  economics  were  concerned.  Robert  Morris,  economists. 
a  skillful  administrator  of  finance,  was  not  in  their  class  as  a 
thinker.   It  is  interesting  to  see  how  it  was  that  Webster  and 
Hamilton  made  Morris  possible.   Professor  Sumner,  who  has  Prof.  Sumner 
written  the  best  book  on  the  finances  of  the  Revolution,  told 
the  whole  story  when  he  said:  "In  February,  1780,  Pelatiah 
Webster  urged  the  appointment  of  a  financier,  that  is  of  a  com- 
petent single  officer  to  take  charge  of  the  finances,  in  place  of 
the  committees  or  boards  who  had  hitherto  been  intrusted  with 
them.1   In  September  of  the  same  year  Alexander  Hamilton 
urged  the  same  view,  that  there  should  be  single  responsible 
heads  of  the  great  departments,  'Mr.  Robert  Morris  would 
have  many  things  in  his  favor  for  the  department  of  finance.' "  a 
Again  Professor  Sumner  says:  "Pelatiah  Webster  asserted  in 
1785,  that  forty  or  fifty  per  cent  more  could  be  obtained  for 
labor  and  country  produce  than  in  1774.   Hamilton  said  that 
labor  was  much  dearer  in  1782  than  before  the  war."  3  Such 
was  the  perfectly  normal  relation  existing  between  the  ma- 
ture and  experienced  financier  and  economist  of  fifty-seven  and 
the  brilliant  and  precocious  young  statesman  of  twenty-six. 
Gifted  as  they  both  were  by  nature,  the  advantage  of  thirty- 
one  years  in  age  and  experience  made  the  one  the  teacher,  the 
leader  of  the  other.   Nothing  is  more  creditable  to  the  young 
man  of  action  than  the  decisive  promptness  with  which  he 
followed  after  his  leader  had  blazed  the  way.    Madison  says  How  Webster 
Webster  was  the  first  to  propose  the  calling  of  a  Federal  Con-  ^J?8  ^ 
vention,  in  1781;  in  July,  1782,  the  legislature  of  New  York  the  Federal 
passed    resolutions,    "which    Hamilton    probably  drafted,"4 
inviting  Congress  "to  recommend  and  each  state  to  adopt  the 

1  In  his  preface   (iii),   Professor  261;  Hamilton's  Works,  i,  215. 
Sumner  says:  "The  finances  of  the  3  Ibid.,  ii,  180,  181. 
Continental  Congress  had  no  proper  4  Bancroft,   History   of  the  Con- 
boundary.  In  one  point  of  view  they  stitution,  i,  38-39  and  note:  "The 
seem  never  to  have  had  any  finances;  grounds  for  believing  Hamilton  to 
in  another  the  whole  administration  have  been  the  draughtsman  of  the 
was  financial."  resolutions    are  solely  the  circum- 

*  The  Financier  and  the  Finances  stances  above  related,  and  that  the 

of  the  American  Revolution,  i,  260-  language  bears  his  impress." 


1 62 


THE  AMERICAN  CONSTITUTION 


[CH. 


Charles  Pinck- 
ney  comes 
upon  the 
scene. 


Madison, 
Hamilton,  and 
Pinckney 
marched  be- 
hind Webster. 


measure  of  assembling  a  general  convention  of  the  states  spe- 
cially authorized  to  revise  and  amend  the  Confederation."  On 
February  1 6,  1783,  Webster  published  at  Philadelphia  the 
programme  that  convention  was  to  adopt;  and  on  April  i  of 
that  year  Hamilton  expressed  in  Congress,  for  the  first  time,  his 
desire  "to  see  a  general  convention  take  place,  and  that  he 
would  soon,  in  pursuance  of  instructions  from  his  constituents, 
propose  to  Congress  a  plan  for  that  purpose."  l  On  April  28, 
and  "so  far  as  the  records  show  never  till  then,"  Congress  ap- 
pointed a  Committee  on  pending  resolutions  in  favor  of  a  gen- 
eral convention.2  Madison  soon  followed  in  the  same  path. 
As  he  tells  us  himself:  "In  a  letter  to  James  Madison  from 
R.  H.  Lee,  then  President  of  Congress,  dated  the  twenty-sixth 
of  November,  1784,  he  says:  '  It  is  by  many  here  suggested  as 
a  very  necessary  step  for  Congress  to  take,  the  calling  on  the 
states  to  form  a  Convention  for  the  sole  purpose  of  revising  the 
Confederation,  so  far  as  to  enable  Congress  to  execute  with 
more  energy,  effect,  and  vigor  the  powers  assigned  to  it,  than  it 
appears  by  experience  that  they  can  do  under  the  present  state 
of  things.'  The  answer  of  Mr.  Madison  remarks, '  I  hold  it  for  a 
maxim,  that  the  union  of  the  states  is  essential  to  their  safety 
against  foreign  danger  and  internal  contention ;  and  that  the 
perpetuity  and  efficiency  of  the  present  system  cannot  be  con- 
fided in.  The  question,  therefore,  is,  in  what  mode,  and  at 
what  moment,  the  experiment  for  supplying  the  defects  ought 
to  be  made/ "  3  In  the  very  month  in  which  Madison  thus 
answered  Lee's  letter,  Charles  Pinckney,  who  was  a  year 
younger  than  Hamilton,  took  his  seat  in  Congress,  there  to 
remain  until  1787.  Thus  were  united  in  the  work  of  the  Conti- 
nental Congress,  during  the  critical  period,  Madison,  Hamilton, 
and  Charles  Pinckney,  the  three  youthful  statesmen  who  were 
to  take  to  the  Federal  Convention  of  1787  —  after  more  than 
four  years  of  study  and  reflection  upon  it  —  the  essence  of 
Webster's  epoch-making  invention  in  the  form  of  "plans," 
which,  as  drafted  by  Hamilton  and  Pinckney,  were  elaborate 
systems  of  government.  At  every  step  the  three  younger  men 
marched  behind  their  great  intellectual  leader,  who,  alone  of  all 


1  Madison  Papers,  i,  429-430. 
f  Bancroft,   Hist,  of  the   Const., 
if  105. 


1  Madison  Papers,  ii,  707-708. 


VI.] 


PELATIAH  WEBSTER'S  INVENTION 


163 


the  men  of  that  epoch,  clearly  understood,  as  early  as  1781, 
that  the  amending  of  the  Articles  of  Confederation  was  a 
chimera.  Webster  tells  us  that  even  then  he  "  was  fully  of  opin- 
ion (though  the  sentiment  at  that  time  would  not  very  well 
bear)  that  it  would  be  ten  times  easier  to  form  a  new  constitu- 
tion than  to  mend  the  old  one.  I  therefore  sat  myself  down  to 
sketch  out  the  leading  principles  of  that  political  constitution, 
which  I  thought  necessary  to  the  preservation  and  happiness 
of  the  United  States  of  America,  which  are  comprised  in  this 
Dissertation."  l 


1  See  Dexter's  Yale  Biographies 
and  Annals,  ii,  97  to  102,  for  a 
sketch  of  Pelatiah  Webster,  with 
enumeration  of  twenty-seven  of  his 
publications.  There  the  statement 
is  made  that  "  it  is  a  matter  of  tradi- 
tion that  members  of  Congress,  es- 
pecially the  Connecticut  delegates, 
were  in  the  habit  of  passing  the  even- 
ing with  him,  to  consult  him  upon 
financial  and  political  concerns." 
Here  the  author  desires  to  make 
acknowledgments  to  Mr.  David  K. 
Watson,  who,  in  his  notable  treatise 


on  "The  Constitution  of  the  United 
States,"  recently  published,  has 
made  prompt  recognition  of  a  part 
of  what  is  due  to  Pelatiah  Webster. 
After  congratulating  himself  upon 
the  opportunity  afforded  by  Con- 
gress for  inspecting  the  epoch-mak- 
ing paper  of  February  16,  1783,  he 
says:  "In  that  pamphlet  Mr.  Web- 
ster undoubtedly  outlined  to  a  cer- 
tain degree  the  Constitution  as  it 
was  subsequently  adopted."  (Vol. 
i,  p.  81.) 


CHAPTER  VII 


Attempt! 
to  solve  a 
mighty  pro- 
blem with 
main  factor 
omitted. 


A  miracle 
of  finance. 


The  financier 
of  the  Revo- 
lution. 


THE  FEDERAL  CONVENTION   OF   1787  AND  ITS  WORK   : 

As  all  preceding  attempts  to  dramatize  the  proceedings  of 
the  Federal  Convention  have  carefully  excluded  the  leading 
actor  from  the  stage,  they  have  necessarily  resulted  in  painfully 
accurate  reproductions  of  the  play  of  "Hamlet,"  with  Hamlet 
left  out.  Such  attempts  to  solve  a  mighty  problem  with  the 
main  factor  omitted  have  involved  the  employment  of  fab- 
ulous stories  and  misty  theories  in  conflict  with  experience  and 
common  sense.  In  the  light  of  the  documentary  evidence  now 
available,  such  expedients  are  no  longer  necessary.  Admitting 
that  the  Convention  performed  "the  most  wonderful  work 
ever  struck  off  at  a  given  time  by  the  brain  and  purpose  of 
man,"  it  is  now  quite  obvious  that  no  supernormal  processes, 
no  miraculous  interventions  entered  into  the  result.  Some- 
thing very  nearly  akin  to  the  miraculous  happens  whenever,  at 
a  turning-point  in  the  world's  history,  some  specially  gifted 
human  being  gives  birth  to  an  idea  that  ripens  into  an  immor- 
tality. That  kind  of  a  miracle  happened  when  on  February  16, 
1783,  an  intensely  practical  man,  of  wonderful  insight  and  with 
a  genius  for  finance,  announced  an  entirely  new  plan  of  federal 
government  in  which  the  centre  of  gravity  is  vested  in  the  cor- 
porate person  of  the  federal  body  and  not  in  the  states  compos- 
ing the  aggregate.  In  a  word,  the  transition  from  the  ancient 
type  of  a  "confederated  state,"  resting  on  the  old  quota 
system,  to  the  new  type  of  a  "composite  state,"  operating 
directly  upon  every  citizen,  was  brought  about  by  a  readjust- 
ment of  the  taxing  power  on  an  entirely  new  basis.  If  the 
bringing  about  of  that  transition  may  be  called  a  miracle,  it 
was  a  miracle  of  finance.  It  is  not  therefore  strange  that 
it  should  have  been  performed  by  a  financier  equally  familiar 
with  the  theoretical  and  practical  sides  of  his  subject.  Cer- 
tainly after  that  event  nothing  that  can  be  called  miraculous 
occurred.  The  problem  that  remained  simply  involved  the 
arduous  task  of  adapting,  through  ordinary  human  agencies, 
to  the  most  difficult  and  complex  conditions,  an  invention  whose 


VII.J    THE  FEDERAL  CONVENTION  AND  ITS  WORK  165 

basic  principle  is  so  simple  that  the  wonder  is  that  it  had  to  be 
discovered  at  all.  With  all  the  antecedents  clearly  in  view,  an 
attempt  will  be  made  to  draw  out,  in  a  simple  and  natural  way, 
the  processes  through  which  the  Convention  completed,  with 
brilliant  success,  a  work  of  adaptation  beset  with  such  obstacles 
as  only  an  impending  catastrophe  could  have  removed. 

Emphasis  has  been  given  already  to  the  fact  that  the  pub-  Hamilton's 
lication  of  Webster's  entirely  new  plan  of  federal  government  f°feia\T 
on  February  16,  1783,  was  followed,  on  April  i,  by  Hamilton's  Convention 
first  move  for  a  Federal  Convention;  and  that  on  April  28, 
Congress,  "and  so  far  as  the  records  show  never  till  then," 
appointed  a  committee  on  the  New  York  resolutions,  then  nine 
months  old,  in  favor  of  such  a  Convention.  When  in  June 
Washington's  circular  letter  to  the  governors  of  the  states 
expressed  the  belief  "that  there  should  be  lodged  somewhere 
a  supreme  power  to  regulate  the  general  concerns  of  the  con- 
federated republic,  without  which  the  Union  can  not  be  of  long 
duration,"  the  newspapers  of  the  day  took  up  the  cry  and 
demanded  a  revision  "not  by  Congress,  but  by  a  Continental 
Convention,  authorized  for  the  purpose."  l  But  before  the 
echo  of  that  appeal  died  away,  Congress  pointedly  declined  to 
take  the  initiative.  When  in  September  Adams  and  Franklin 
attempted  to  pave  the  way  for  a  better  union,  a  special  com- 
mittee, of  which  Arthur  Lee  was  a  member,  was  appointed, 
which  reported  that  "as  the  several  states  are  sovereign  and 
independent,  and  possess  the  power  of  acting  as  may  to  them 
seem  best,  Congress  will  not  attempt  to  point  out  the  path.  Congress 
The  mode  for  joint  effort  will  suggest  itself  to  the  good  sense 
of  America."  2  The  good  sense  of  America  declined,  however, 
to  take  up  the  task  in  earnest  until  the  spur  of  commercial  and 
financial  necessity  became  so  sharp  that  it  could  be  resisted  no 
longer. 

The  last  stage  of  the  good  work  really  began  on  March  Joint  commis- 
28,  1785,  when  the  joint  commissioners  of  Virginia  and  Mary-  ^r*n°df  Vir" 
land  3  met  at  Mt.  Vernon  to  arrange,  under  the  auspices  of  Maryland, 

1  See  Philadelphia,  July  3",  1783;  *  Reports  of  committees  on  in- 

Maryland  Gazette,  July  n.  In  a  let-  creasing  the  powers  of  Congress,  95, 

ter  to  Dr.  William  Gordon,  8th  July,  MS. 

1783,  MS.,  Washington  did  not  hes-  *  George  Mason  and  Alexander 

itate   to  express  his  "wish  to  see  Henderson  of  Virginia;  Daniel  of  St. 

energy  given  to  the  federal  constitu-  Thomas  Jenifer,  Thomas  Stout,  and 

tion  by  a  convention  of  the  people."  Samuel  Chase  of  Maryland. 
Bancroft,  i,  113. 


166  THE  AMERICAN  CONSTITUTION  [Cn. 

Washington,  the  terms  of  a  compact  between  the  two  states  for 
the  jurisdiction  over  the  waters  of  the  Chesapeake  Bay  and  the 
rivers  common  to  both  states,  coupled  with  a  request  to  Penn- 
sylvania to  grant  the  free  use  of  the  branches  of  the  Ohio 
within  its  limits,  so  as  to  establish  the  connection  between  that 
river  and  the  Potomac. 

The  primary  work  of  the  commissioners  being  thus  per- 
formed, they  passed  on  to  wider  subjects  of  policy  and  recom- 
mended to  the  states  in  question  uniformity  of  commercial 
regulations,  uniformity  of  duties  on  imports,  and  uniformity 
of  currency.1  At  that  moment  the  country  was  distracted  by 
commercial  conflicts  which  made  it  imperative  that  Congress 
should  be  armed  with  adequate  power  to  regulate  trade. 
Something  had  to  be  done  to  prevent  the  enactments  of  one 
state  to  the  injury  of  the  trade  of  the  other,  and  to  establish 
a  system  intelligible  to  foreigners  trading  with  this  country. 
Each  state  was  attempting  to  regulate  commerce  on  its  own 
state  tariffs  account  and  in  its  own  interest.  In  1785  New  York  laid  a 
°* I?85<  double  duty  on  all  goods  whatever  imported  in  British  ships ; 

and  in  the  same  year  Pennsylvania  passed  the  first  of  a  series 
of  tariff  acts,  designed  to  tax  the  whole  community  for  the  bene- 
fit of  a  few  manufactures.  In  the  midst  of  it  all,  Washington 
wrote:  "If  the  states  individually  attempt  to  regulate  com- 
merce, an  abortion  or  a  many-headed  monster  would  be  the 
issue.  If  we  consider  ourselves  or  wish  to  be  considered  by 
others  a  united  people,  why  not  adopt  the  measures  which  are 
characteristic  of  it,  and  support  the  honor  and  dignity  of  one? 
If  we  are  afraid  to  trust  one  another  under  qualified  powers, 
there  is  an  end  of  the  Union."  * 

At  that  critical  juncture  it  was  that  the  ever  vigilant  and 
patriotic  Madison  hit  upon  an  expedient.  When  on  Decem- 
ber 5,  Maryland  gave  her  adhesion  to  the  compact  regulating 
the  jurisdiction  of  the  waters  of  Chesapeake  Bay  and  the  Po- 
tomac, her  legislature  sent  a  communication  to  that  of  Vir- 
ginia proposing  that  commissioners  from  all  the  states  should 
be  invited  to  meet  and  regulate  the  restrictions  on  commerce 

1  Cf .  Rives's  Life  of  Madison,  ii,  either  a  united  people  or  we  are  not 

58;  Madison  Papers,  ii,  696.  so.    If  the  former,  let  us  in  all  mat- 

1  Washington    to    Stuart,    3Oth  ters  of  national  concern  act  as  a  na- 

Nov.,  1785.  When  Washington  was  tion  which  has  a  national  character 

invited  to  suggest,  he  said:  "The  to  support."   Sparks,  ix,  145,  146. 
proposition  is  self-evident.  We  are 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  167 

for  the  whole.  After  Virginia  had  responded  promptly  to  the 
action  of  Maryland,  by  enacting  equally  liberal  legislation  as 
to  jurisdiction  over  the  waters  in  question,1  Madison,  having 
in  view  "a  politico-commercial  commission"  for  the  continent, 
at  once  prepared  a  motion  to  the  effect  that  commissioners 
from  all  the  states  should  be  invited  to  hold  a  meeting  in  order 
to  discuss  the  best  method  of  securing  a  uniform  treatment 
of  commercial  questions.  With  consummate  craft  he  put  his 
motion  into  the  hands  of  John  Tyler,  a  zealot  for  the  independ- 
ence of  the  states,  who  happened  to  agree  with  him  on  that 
question;  and  on  January  21,  1786,  it  passed  both  branches 
of  the  Virginia  legislature  by  a  large  majority.2 

The  result  was  the  invitation  to  the  commissioners  of  all 
the  states  to  meet  in  September  of  that  year  in  the  trade  con- 
vention at  Annapolis,  from  which  proceeded,  as  heretofore  Annapolis 
explained,  the  call  for  the  more  famous  body  that  assembled 
at  Philadelphia  in  May,  1787.  The  irresistible  commercial  and 
financial  movement  proceeding  from  the  states  which  thus 
forced  the  meeting  of  the  Federal  Convention  received  tardy 
and  reluctant  recognition  from  Congress  itself.  After  the 
Annapolis  Convention  had  fixed  the  time  and  place,  the  Massa- 
chusetts delegation,  led  by  King,  prevented  the  recommend- 
ation of  the  measure  which  the  deputations  at  Annapolis 
asked  for.  Not  until  Virginia,  New  Jersey,  Pennsylvania, 
North  Carolina,  and  Delaware  had  spoken  affirmatively  did 
King  begin  to  see  the  error  of  his  way.  What  really  appealed 
to  him  was  the  fact  that  "events  are  hurrying  us  to  a  crisis. 
Prudent  and  sagacious  men  should  be  ready  to  seize  the  most 
favorable  circumstances  to  establish  a  more  perfect  and  vigor- 
ous government."  3  Thus  impelled,  he  offered,  before  the  end  of  Federal 
February,  1787,  a  motion,  accepted  without  opposition,  which, 
while  carefully  ignoring  the  act  of  the  meeting  at  Annapolis, 
recommended  as  an  original  measure  a  convention  to  meet  at 
the  same  time  and  place.4  The  impending  crisis  that  drove 
King  to  this  action  deepened  with  the  increasing  perplexities 
that  seemed  to  culminate  just  at  that  moment.  Alarm  grew  its  meeting 
into  consternation  as  Shays's  Rebellion  in  Massachusetts,  the  forced  bx 
riots  in  Vermont  and  New  Hampshire,  the  "Know  Ye"meas-  e 

1  Hening,  xii,  50,  55.  <  Journals,     iv,     723;    Madison 

1  Madison  Papers,  ii,  694-695.  Papers,  ii,  587,  619,  620. 

1  Austin's  Gerry,  ii,  3,  4,  7,  and  8. 


i68 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Imperious 
necessities 
of  commerce 
and  finance. 


The  jealous 
spirit  of  local 
self-interest. 


ures  of  Rhode  Island,  the  paper-money  craze  in  so  many 
states,  the  quarrel  with  Spain,  and  the  imminent  danger  of 
separation  between  North  and  South  consequent  thereon, 
seemed  to  struggle  together  in  the  effort  to  produce  anarchy. 
And,  last  and  most  of  all,  less  than  three  months  before  the 
time  fixed  for  the  meeting  at  Philadelphia  the  State  of  New 
York,  the  one  financial  prop  of  the  Confederation,  after  an 
impassioned  appeal  by  Hamilton  in  the  legislature,  on  Febru- 
ary 15,  1787,  so  clogged  her  assent  to  the  amendment  endowing 
Congress  with  the  power  to  levy  customs  duties  and  to  appoint 
the  collectors  as  to  defeat  it.  Thus  Congress  was  decisively 
informed  by  New  York,  as  it  had  long  ago  been  informed  by 
Rhode  Island,  that  it  would  never  be  armed  with  any  effectual 
means  for  raising  revenue.  In  the  midst  of  the  deepening 
gloom,  and  under  the  pressure  of  a  common  danger,  all  the 
states  took  part  in  the  proceedings  at  Philadelphia  except  self- 
centred  Rhode  Island,  which  failed  to  send  delegates. 

No  mind  accustomed  to  follow  the  swelling  streams  of 
causation  as  they  flow  through  the  forest  of  interdependent 
historical  facts  should  find  it  difficult  to  perceive  that  it  was 
the  imperious  necessities  of  commerce  and  finance  that  drove 
the  states  together  in  the  famous  assembly  that  completed  the 
second  Constitution  of  the  United  States.  How  imperious  such 
necessities  were  can  only  be  understood  in  the  presence  of  the 
opposing  forces  they  were  obliged  to  overcome.  The  people 
that  dwelt  in  the  straggling  and  long-drawn-out  series  of  repub- 
lics then  fringing  our  Atlantic  seaboard,  so  far  from  being 
inspired  by  a  common  sentiment  of  union,  the  after-growth 
of  a  later  time,  were  filled  with  an  intensely  provincial  spirit  to 
which  local  self-interest  appealed  in  many  forms.  It  was  that 
jealous  spirit  of  local  self-interest  that  refused  to  the  last  to 
arm  the  Congress  of  the  Confederation,  even  to  a  limited 
extent,  with  the  power  to  tax ;  it  was  that  spirit  that  refused  to 
the  last  so  to  arm  Congress  with  the  power  to  regulate  trade  as 
to  enable  it  to  crush  out  the  interstate  tariff  wars  then  paralyz- 
ing commerce,  foreign  and  domestic.  In  the  presence  of  such 
conditions  it  is  not  strange  that  the  British  Order  in  Council 
of  the  2d  of  July,  1783,  should  have  been  "issued  in  full  con- 
fidence that  the  United  States  cannot  agree  to  act  as  one  na- 
tion";1 it  is  not  strange  that  the  British  Ambassador  at  Paris, 
1  See  letter  of  John  Adams  to  Congress,  Dip.  Cor.,  vii,  81,  88, 100. 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  169 

when  he  was  notified  by  the  American  Commissioners  in  I784,1 
that  they  had  full  powers  to  negotiate  a  commercial  treaty  with 
Great  Britain,  should  have  replied,  after  consulting  with  Eng- 
lish merchants  trading  with  North  America,  that  "the  appar- 
ent determination  of  the  respective  states  to  regulate  their 
own  separate  interests  renders  it  absolutely  necessary,  toward 
forming  a  permanent  system  of  commerce,  that  my  court 
should  be  informed  how  far  the  commissioners  can  be  duly 
authorized  to  enter  into  any  engagements  with  Great  Britain, 
which  it  may  not  be  in  the  power  of  any  one  of  the  states  to 
render  totally  fruitless  and  ineffectual."  Josiah  Tucker,  Dean 
of  Gloucester,  reputed  to  be  a  sagacious  man,  simply  expressed 
the  general  view  of  European  statesmen  when  he  said:  "As  to  Josiah 
the  future  grandeur  of  America,  and  its  being  a  rising  empire 
under  one  head,  whether  republican  or  monarchical,  it  is  one 
of  the  idlest  and  most  visionary  notions  that  ever  was  con- 
ceived even  by  writers  of  romance."  How  could  a  contrary 
conclusion  be  reached  by  those  who  knew  that  the  long  and 
discreditable  history  of  federalism  as  a  system  of  government 
had  been  carried  to  the  verge  of  the  grotesque  by  the  first  and 
pending  American  experiment? 

In  the  midst  of  the  midnight  there  was  but  a  single  star, 
and  that  was  visible  only  to  the  eyes  of  the  elect.  To  those 
watchers  of  the  skies  it  came  like  a  new  planet  when,  on  Feb- 
ruary 16,  1783,  the  great  one  laid  at  the  doors  of  the  Con- 
gress an  entirely  novel  yet  complete  solution  of  the  mighty 
problem  by  which  they  were  mastered  and  overcome.  No 
invention  of  the  human  mind  was  ever  more  distinctly  re-  isolation  sur- 
moved  from  all  rivalry  by  the  isolation  surrounding  its  birth.  w"()^^ 
No  sane  or  serious  person  will  contend  that  it  had  been  pre-  invention. 
ceded  by  any  prototype  whatever;  and  not  until  about  four 
years  after  its  appearance  was  any  attempt  made  to  reproduce 
it  in  any  form.  While  it  thus  stood  forth  in  the  solitude  of  its 
own  originality,  it  was  seized  upon  by  three  youthful  states- 
men, Madison,  Hamilton,  and  Charles  Pinckney,  who,  after 
restating  it  in  the  form  of  more  or  less  complete  systems  of  gov- 
ernment, made  it  the  basis  of  the  proceedings  of  the  Federal 
Convention  of  1787.  Is  it  a  matter  of  wonder  that  the  greatest 

1  The  American   Commissioners      British  Ambassador  at  Paris  was  the 
for  negotiating  treaties  were  John      Duke  of  Dorset. 
Adams,  Franklin,  and  Jefferson;  the 


170 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Adam  Smith 
and  his  work. 


Alternatives 
presented  to 
Convention. 


Summary. 


financier  and  economist  of  the  age  should  have  solved  the  grav- 
est financial  and  commercial  problem  presented  by  that  age? 
Is  it  a  matter  of  wonder  that  a  Convention  forced  together  by 
the  pressure  of  an  impending  catastrophe  brought  on  by  acute 
commercial  and  financial  conditions  should  have  seized  upon 
the  only  remedy  ever  offered  as  an  alleviation  of  them?  In  the 
year  in  which  the  Declaration  of  Independence  was  made, 
Adam  Smith  discredited  the  economic  policy  of  the  past  and 
promoted  the  overthrow  of  worn-out  institutions  by  the  pub- 
lication of  the  "Wealth  of  Nations";  "perhaps,"  as  Mackin- 
tosh has  declared,  "  the  only  book  which  produced  an  immediate, 
general,  and  irrevocable  change  in  some  of  the  most  import- 
ant parts  of  the  legislation  of  all  civilized  states."  Seven  years 
later  Pelatiah  Webster  practically  abolished  the  ancient  type 
of  a  federal  league  resting  on  the  quota  system,  as  it  had  existed 
for  over  two  thousand  years,  and  established  in  its  stead  the  new 
type  of  a  composite  state  which  has  become  universal.  It  was 
a  time  of  transition,  of  change  from  the  past  to  the  present, 
during  which  such  achievements  were  possible.  So  complete,  so 
finished  was  Webster's  performance  that  the  work  of  the  Con- 
vention in  its  larger  aspect  was  reduced  to  a  choice  between 
two  alternatives.  It  had  either  to  perpetuate  the  old  and  dis- 
credited system  by  adopting  the  plan  of  an  amended  Confed- 
eration, as  presented  by  Paterson ;  or  it  had  to  adopt  the  path- 
breaking  invention,  "the  wholly  novel  theory"  presented  to  it 
with  variations  in  detail  by  Madison,  Hamilton,  and  Pinckney. 
In  the  mighty  conflict  of  forces  the  old  provincial  spirit,  strong  as 
it  was,  was  crushed,  only  by  the  threat  of  the  deluge.  After  the 
Paterson  plan  had  been  swept  away,  the  only  question  that 
remained  was  as  to  the  form  in  which  the  great  invention,  as 
embodied  in  the  so-called  plans  of  Madison,  Hamilton,  and 
Pinckney,  should  be  transformed  into  a  working  system  of  gov- 
ernment. With  that  clue  to  the  labyrinth  it  will  be  compar- 
atively easy  to  follow  the  details  of  the  proceedings  of  the 
Convention  subsequent  to  the  introduction  of  the  four  plans, 
as  the  records  now  available  are,  with  a  few  exceptions,  fairly 
complete  and  accurate. 

An  earnest  effort  has  now  been  made  to  demonstrate  that 
an  irresistible  popular  movement,  driven  on  by  the  pressure  of 
commercial  and  financial  necessity,  finally  forced  the  Contin- 
ental Congress  to  acquiesce  at  a  specially  critical  moment  in 


VII.]     THE  FEDERAL  CONVENTION  AND  ITS  WORK 


171 


the  calling  of  a  Federal  Convention ;  that  the  progressive  states- 
men of  the  time  went  to  that  Convention,  under  the  leadership 
of  Washington,  resolved  to  break  away  from  the  past  by  adopt- 
ing an  entirely  new  plan  of  federal  government  upon  which 
they  had  been  reflecting  for  more  than  four  years;  that  Madi- 
son, Hamilton,  and  Pinckney,  who  were  necessarily  familiar 
with  that  plan  from  the  day  it  was  published  under  their  very 
eyes,  had,  after  prolonged  study,  formulated  it  in  more  or  less 
elaborate  systems  of  government  of  which  particular  descrip- 
tions have  been  given  already.  Only  in  the  light  of  these  con- 
clusions, proven  hardly  more  distinctly  by  the  documentary 
evidence  than  by  the  elementary  rules  of  common  sense,  is  it 
possible  to  account  for  the  fact  that  "the  most  wonderful  work 
ever  struck  off  at  a  given  time  by  the  brain  and  purpose  of 
man"  was  entirely  performed,  from  start  to  finish,  within  the 
narrow  limits  of  eighty-six  working  days.  The  table  here 
appended  will  remove  all  controversy  as  to  that  point.  Pur- 
suant to  call,  the  Convention  met  May  14,  1787.  There  was  no 
quorum  present  until  Friday,  May  25.  The  Convention  then 
sat  as  follows :  — 


May 
June 

July 

August 
September 


Su.     M.    TUB.  W.    TH.     F.     SAT. 


25 

28 

29 

30 

31 

=  5  days 

I 

2 

4 

5 

6 

7 

8 

9 

II 

12 

13 

14* 

15 

16 

18 

19 

20 

21 

22 

23 

25 

26 

27 

28 

29 

30 

=  26  days 

2 

5 

6 

7 

9 

10 

ii 

12 

13 

H 

16 

17 

18 

19 

20 

21 

23 

24 

25 

26 

=  20  days 

6 

7 

8 

9 

IO 

II 

13 

14 

15 

16 

17 

18 

20 

21 

22 

23 

24 

25 

27 

28 

29 

30 

31 

=  23  days 

I 

3 

4 

5 

6 

7 

8 

10 

11* 

12 

13 

14 

15 

17 

=  14  days 

Deduct  14*  and  n* 


88  days 
2  days 
86  days 

This  table  was  prepared  by  my  friend,  Mr.  Justice  Shackelford  Miller  of 
the  Kentucky  Court  of  Appeals,  a  master  of  the  history  of  the  Convention. 


Met  and  adjourned 
Worked 


Convention 
worked  only 
eighty-six  days. 


172 


THE  AMERICAN  CONSTITUTION 


[CH. 


Absurdity  of 

inspiration 

theoiy. 


The  four  new 
principles. 


Relation 
between 
architect 
and  master 
builders.   ' 


•  Even  if  the  explicit  and  voluminous  documentary  evidence 
did  not  establish  the  contrary,  nothing  could  be  more  grotesque, 
more  chimerical,  than  the  assumption  that  the  assembly  met 
under  the  spell  of  some  kind  of  inspiration  that  enabled  it  not 
only  to  make,  as  a  corporate  act,  an  epoch-making  invention 
in  political  science,  but  to  elaborate  it  as  a  working  system  of 
government  within  the  span  of  eighty-six  working  days.  The 
moment  the  inspiration  theory  is  set  aside,  the  fact  appears  that 
the  three  plans  out  of  which  the  finished  product  grew  had  been 
carefully  elaborated  some  time  beforehand  by  three  minds, 
that  took  from  the  common  source  open  to  all  the  four  basic 
principles  first  announced  on  February  16,  1783.  Those  basic 
principles  are  (i)  a  federal  government  with  the  independent 
power  of  taxation ;  (2)  the  division  of  the  federal  head  into  three 
departments,  legislative, executive,  and  judicial;  (3)  the  divis- 
ion of  the  federal  legislature  into  two  chambers ;  (4)  a  federal 
government  with  delegated  powers  operating  directly  on  the 
citizen,  the  residuum  of  power  remaining  in  the  states.  It  is  no 
exaggeration  to  say  that  Webster's  creation  based  on  those 
four  novel  principles  was  as  different  from  any  preceding  fed- 
eral system  as  a  modern  mogul  engine  is  from  an  ancient  stage- 
coach. When  the  documents  containing  the  plans  as  drafted  by 
Madison,  Hamilton,  and  Pinckney  are  placed  in  juxtaposition 
with  the  original  paper  of  February  16,  I783,1  a  mere  compari- 
son settles  the  fact  that  the  great  invention,  which  is  the  basis 
of  all  of  them,  was  drawn  by  each  from  the  common  source. 
And  yet  after  that  claim  has  been  fully  admitted,  as  it  will  be 
by  every  honest  and  reasonable  mind,  the  fact  remains  that 
the  master  builders,  who  transformed  under  the  most  difficult 
circumstances  possible  the  dream  of  the  great  architect  into 
a  working  system  of  government,  achieved  a  result  as  remark- 
able as  the  invention  itself.  As  time  goes  on,  it  becomes  more 
and  more  necessary  that  every  patriotic  American,  no  matter 
whether  he  is  a  student  of  the  Science  of  Politics  or  not,  should 
study  the  history  of  the  eighty-six  days  so  minutely  as  to 
enable  him  to  view,  as  a  connected  whole,  the  most  thrilling 
and  important  political  drama  ever  enacted  on  the  stage  of  the 
world. 

Tacitus  tells  us  that  the  Teutonic  warriors  made  it  a  habit 
1  See  Appendices  xi,  xn,  xm,  and  xiv. 


VII.]     THE  FEDERAL  CONVENTION  AND  ITS  WORK  173 

never  to  meet  in  the  state  assembly  at  the  time  appointed  lest  Convention 
punctuality  should  look  like  obedience.  True  to  the  ancient  £?  t^^f  j 
tradition  the  members  of  the  Federal  Convention  who  were  on  May  14. 
summoned  for  the  I4th  of  May  did  not  gather  at  Philadelphia  in 
sufficient  numbers  to  do  business  until  the  25th.  At  the  hour 
appointed  for  opening  the  Convention  on  the  I4th,  Virginia 
and  Pennsylvania,  the  only  states  sufficiently  represented, 
appeared  at  the  State  House,  and,  with  others  as  they  arrived, 
adjourned  from  day  to  day.  On  the  1 7th,  South  Carolina 
appeared  on  the  floor;  on  the  i8th,  New  York;  on  the  2ist, 
Delaware;  on  the  22d,  North  Carolina;  and  finally  on  the  25th, 
New  Jersey,  the  last  of  the  seven  states  necessary  to  form 
a  house.1  As  guide,  councilor,  and  friend  of  them  all  came 
George  Washington,  who  was  met  at  Chester  by  public  honors 
that  followed  him  to  Philadelphia,  where  he  was  escorted  by 
the  city  light  horse  amid  the  chiming  of  bells  that  announced  the 
beginning  of  a  new  national  life.  He  had  come  with  a  firm 
resolve  to  break  with  the  past.  In  a  then  recent  letter  to  Washington's 
Madison  he  had  said,  "My  wish  is  that  the  Convention  may 
adopt  no  temporizing  expedients,  but  probe  the  defects  of  the 
Constitution  to  the  bottom  and  provide  a  radical  cure,  whether 
agreed  to  or  not.  A  conduct  of  this  kind  will  stamp  wisdom  and 
dignity  on  their  proceedings,  and  hold  up  a  light  which  sooner 
or  later  will  have  its  influence."  2  To  that  he  added  one  day, 
while  standing  in  the  midst  of  those  who  were  waiting  for  a 
quorum:  "It  is  too  probable  that  no  plan  we  propose  will  be 
adopted.  Perhaps  another  dreadful  conflict  is  to  be  sustained. 
If,  to  please  the  people,  we  offer  what  we  ourselves  disap- 
prove, how  can  we  afterward  defend  our  work?  Let  us  raise 
a  standard  to  which  the  wise  and  honest  can  repair ;  the  event 
is  in  the  hand  of  God."  3  Under  such  inspiration  the  Virginia 
delegation,  completed  by  the  arrival  of  George  Mason,  pre- 
pared during  the  interval  to  take  the  lead  by  conferring  "to- 
gether by  themselves  two  or  three  hours  every  day  in  order  to 
form  a  proper  correspondence  of  sentiments."4  On  Friday  the 
25th,  the  following  deputies  appeared:  From  Massachusetts,  May 25. 

1  Madison   Papers,    ii,    721-723.          *  Gouverneur     Morris's    oration 

On  the  28th  the  representation  was  upon  the  death  of  Washington,  Dec. 

increased  to  nine  by  the  arrival  of  31,  1799,  20-21. 
Maryland  and  Massachusetts.  4  George  Mason  to  his  son,  Phila- 

*  March  31, 1787.  Sparks,  ix,  250.  delphia,May  20,  MS.  Bancroft,  ii,  5. 


174 


THE  AMERICAN  CONSTITUTION 


[Ci 


Committee 
to  prepare 
standing  rules. 


Virginia  plan 
presented 
May  29. 


Madison's 
first  sketch 
on  paper. 


Rufus  King;  from  New  York,  Robert  Yates  and  Alexander 
Hamilton;  from  New  Jersey,  David  Brearley,  William  Church- 
ill Houston,  and  William  Paterson;  from  Pennsylvania, 
Robert  Morris,  Thomas  Fitzsimons,  James  Wilson,  and 
Gouverneur  Morris;  from  Delaware,  George  Read,  Richard 
Bassett,  and  Jacob  Broom;  from  Virginia,  George  Washington, 
Edmund  Randolph,  John  Blair,  James  Madison,  George 
Mason,  George  Wythe,  and  James  McClurg;  from  North  Caro- 
lina, Alexander  Martin,  William  Richardson  Davie,  Richard 
Dobbs  Spaight,  and  Hugh  Williamson ;  from  South  Carolina, 
John  Rutledge,  Charles  Cotesworth  Pinckney,  Charles  Pinck- 
ney,  and  Pierce  Butler;  from  Georgia,  William  Few.  After  the 
unanimous  election  of  Washington  as  President,  and  William 
Jackson  as  Secretary,  "on  reading  the  credentials  of  the  depu- 
ties, it  was  noticed  that  those  from  Delaware  were  prohibited 
from  changing  the  Article  of  the  Confederation  establishing  an 
equality  of  votes  among  the  states."  1  The  appointment  of  a 
committee  to  prepare  standing  rules  and  orders  closed  the  busi- 
ness of  the  day ;  while  the  next  was  devoted  to  the  adoption  of 
the  rules  submitted  by  it,  the  first  of  which  provided:  "A 
House  to  do  business  shall  consist  of  the  deputies  of  not  less 
than  seven  states;  and  all  questions  shall  be  decided  by  the 
greater  number  of  these  which  shall  be  fully  represented.  But 
a  less  number  than  seven  may  adjourn  from  day  to  day.'*  It 
was  distinctly  provided  that  no  registry  was  to  be  made  of  the 
votes  of  individuals,  who  were  thus  secured  greater  freedom  of 
action. 

The  moment  its  organization  was  thus  completed,  the  Con- 
vention, on  May  29,  plunged  without  the  slightest  prelimin- 
ary into  the  great  business  its  dominating  members,  with 
Washington  at  their  head,  had  come  to  perform  —  the  business 
of  making  an  entirely  new  Constitution  on  the  basis  of  the 
invention  announced  to  the  world  by  Pelatiah  Webster,  Feb- 
ruary 16,  1783.  After  a  notable  speech,  Governor  Randolph 
presented  the  fifteen  resolutions  embodying  what  is  generally 
known  as  the  Virginia  plan,  of  which  Madison  was  undoubt- 
edly the  real  author.  That  statement  should,  however,  be 
accompanied  by  Madison's  carefully  drawn  declaration  that 
"as  a  sketch  on  paper,  the  earliest,  perhaps,  of  a  Constitu- 
1  Madison  Papers,  ii,  723. 


vii.]    THE  FEDERAL' CONVENTION  AND  ITS  WORK  175 

tional  Government  for  the  Union  (organized  into  the  regular 
departments,  with  the  physical  means  operating  on  individ- 
uals) to  be  sanctioned  by  the  people  of  the  states,  acting  in  their 
original  and  sovereign  character,  was  contained  in  the  letters 
of  James  Madison  to  Thomas  Jefferson  of  the  nineteenth  of 
March ;  to  Governor  Randolph  of  the  eighth  of  April ;  and  to 
General  Washington  of  the  sixteenth  of  April,  1787,  for  which 
see  their  respective  dates."  As  the  sketch  or  plan  contained  in 
those  letters  is  the  only  one  Madison  ever  claimed  as  his  own, 
justice  to  him  requires  that  they  should  be  printed  in  the 
Appendix  as  a  supplement  to  or  commentary  upon  the  resolu- 
tions offered  by  Randolph,  which  were,  no  doubt,  drafted  by 
Madison  as  a  formal  summary  of  the  larger  statement  which 
the  letters  contain.1  Randolph's  remark  that  "as  the  Con-  Randolph's 
vention  had  originated  from  Virginia,  and  his  colleagues  sup-  statement- 
posed  that  some  proposition  was  expected  from  them,  they  had 
imposed  this  task  on  him/' 2  is  a  substantial  repudiation  of  any 
claim  upon  his  part  of  personal  authorship.  It  is  perfectly  plain 
that  Madison's  great  modesty,  which  often  expressed  itself 
in  blushes,3  coupled  with  his  comparative  youth  and  lack,  at 
that  time,  of  commanding  prestige,  made  it  as  natural  as  it  was 
expedient  for  him  to  treat  as  the  product  of  his  delegation 
resolutions  drafted  in  the  main  by  his  own  hand.  And  yet 
after  every  possible  credit  has  been  given  to  Madison  for  the 
resolutions  and  letters,  considered  as  a  connected  whole,  how 
can  any  critical  mind  declare  with  Bancroft  that  "the  Vir- 
ginia members  prepared  a  finished  plan"?4  As  stated  here- 
tofore, only  Pinckney  and  Hamilton  formulated,  before  the  OnlyPinck- 
Convention  met,  finished  schemes  of  a  new  type  of  federal  gov-  !Jfy  ajd  J1^" 

..  .      .  ....        "ton  drafted 

ernment;  the  Virginia  Resolutions  only  set  forth  the  basic  prm-  finished  plans, 
ciples  upon  which  such  a  new  scheme  might  be  constructed ;  in 
the  words  of  Judge  Nott,  they  only  "brought  before  the  Con- 
vention questions  for  abstract  discussion  and  bases  on  which 
to  rest  principles  of  government."6  And  yet,  general  and 
abstract  as  the  Virginia  Resolutions  were,  they  embodied  com- 
pletely the  great  invention.  They  outlined  a  composite  state 

1  These  documents  are  all  printed  *  The  Critical  Period,  p.  227. 
consecutively  in  Appendix  xn.  *  Hist  of  Const.,  ii,  v. 

2  From  the  opening  of  his  speech  B  See  above,  pp.  33,  34. 
presenting  the  Virginia  Resolutions. 

Madison  Papers,  ii,  729. 


176  THE  AMERICAN  CONSTITUTION  [Cn. 

acting  directly  upon  the  citizen,  with  the  federal  head  divided 
into  three  departments,  legislative,  executive,  and  judicial. 
The  Congress,  with  full  taxing  power,  was  to  be  divided  into 
two  chambers  instead  of  one,  while  the  new  government  as  a 
whole  was  to  be  armed  with  the  right  to  maintain  the  suprem- 
acy of  federal  law.  So  soon  as  the  Virginia  Resolutions  were 
referred  to  "a  Committee  of  the  Whole  House,  to  consider  the 
state  of  the  American  Union,"  Charles  Pinckney  presented  his 
Pinckney's  pjan  or  System.  The  event  is  thus  recorded  in  the  minutes  of 
tem"  pre-  Yates :  "Mr.  C.  Pinckney,  a  member  from  South  Carolina,  then 
sented  May  29.  added  that  he  had  reduced  his  ideas  of  a  new  government  to 
a  system,  which  he  then  read."  l  According  to  Madison  it  was 
then  "ordered,  that  the  said  draft  [of  the  Pinckney  plan]  be 
referred  to  the  Committee  of  the  Whole  to  consider  the  state  of 
the  American  Union.  Adjourned."  Thus  it  appears  that  be- 
'  fore  adjournment  on  the  first  day  upon  which  the  Convention 
really  proceeded  to  business,  Madison  and  Pinckney  submitted, 
the  one  in  the  form  of  general  principles,  the  other  in  a  far  more 
concrete  and  systematic  form,  the  entirely  new  plan  of  federal 
government  now  embodied  in  the  existing  Constitution  of  the 
United  States. 

Copy  of  lost  The  reasons  have  been  stated  already  for  the  conclusion  that 
famished  in"*  t^ie  c°Py  °^  t^ie  *ost  Pinckney  plan,  furnished  by  its  author  to 
1818.  the  Secretary  of  State  in  1818  and  published  by  him  in  the  fol- 

lowing year,  contains  certainly  the  substance  of  his  original 
draft.2  When  that  copy  is  placed  in  juxtaposition  with  the 
Virginia  Resolutions,  the  latter,  considered  as  a  "  finished  plan  " 
of  government,  are  poor  indeed.  In  the  light  of  that  fact 
Madison's  criticism  of  the  copy  furnished  by  Pinckney  must 
be  judged.  That  criticism  opens  with  the  admission  that  "the 
length  of  the  document  laid  before  the  Convention,  and  other  cir- 
cumstances" prevented  the  taking  of  a  copy  of  the  Pinckney 
plan  at  the  time  it  was  offered;  and  that  admission,  as  to 
length,  is  corroborated  by  Yates,  who  says  that  Pinckney 
"added  that  he  had  reduced  his  ideas  of  a  new  government  to 
a  system,  which  he  then  read."  Thus  the  fact  is  fixed  that  what 
Pinckney  actually  offered  was  not  a  mere  abstract  but  a  "sys- 
tem "  of  government  certainly  worked  out  in  some  detail.  The 

1  Madison  Papers,  ii,  746.  See  also  p.  735. 
J  See  above,  p.  33. 


VII.]      THE  FEDERAL   CONVENTION  AND  ITS  WORK  177 

gravamen  of  Madison's  criticism  is  this:  "On  comparing  the  Gravamen  of 
paper  with  the  Constitution  in  its  final  form,  or  in  some  of  its 
stages,  and  with  the  propositions  and  speeches  of  Mr.  Pinckney 
in  the  Convention,  it  was  apparent  that  considerable  error  had 
crept  into  the  paper,  occasioned  possibly  by  the  loss  of  the  docu- 
ment laid  before  the  Convention  (neither  that  nor  the  Reso- 
lution offered  by  Mr.  Paterson,  being  among  the  preserved 
papers),  and  by  a  consequent  resort  for  a  copy  to  the  rough 
draft,  in  which  erasures  and  interlineations,  following  what 
passed  in  the  Convention,  might  be  confounded,  in  part  at 
least,  with  the  original  text,  and,  after  a  lapse  of  more  than 
thirty  years,  confounded  also  in  the  memory  of  the  author."  * 
Madison's  assumption,  not  entirely  unreasonable  when  made, 
"that  considerable  error  had  crept  into  the  paper,"  has  been  so 
successfully  refuted  by  the  work  recently  done  by  Professor 
Jameson  and  Judge  Nott,2  that  but  little,  if  any,  weight  can  Jameson 
now  be  attached  to  it.  In  remembering  that  the  essence  of  the 
imputation  against  Pinckney  was  embodied  in  the  idea  that  he 
had  pieced  out  his  original  draft  by  borrowing  matter  from  the 
Constitution  as  completed,  we  should  not  forget  that  no  one 
then  realized  what  a  reservoir  he  had  to  draw  from  in  the  great 
document  of  February  16,  1783,  far  more  voluminous  than  the 
Constitution  itself.  The  fact  is  that  Pinckney  surpassed  both 
Madison  and  Hamilton  in  the  faithfulness  with  which  he 
restated  to  the  Convention  the  essence  of  the  invention  Web- 
ster had  made.  His  version  was  the  version  par  excellence,  free  Pinckney's 
as  it  was,  on  the  one  hand,  from  the  timid  pretense  of  the  Vir- 
ginia  plan  that  only  a  revision  of  the  Articles  of  Confederation 
was  intended,  and,  on  the  other,  from  the  extreme  centralizing 
tendencies  of  Hamilton's  plan,  for  which  the  country  was  not 
prepared.  It  must,  however,  be  said  in  justice  to  Madison, 
when  we  gather  his  real  motives  from  his  letters,  that  he  was 
just  as  resolute  as  Washington  in  the  wish  "that  the  Conven- 
tion may  adopt  no  temporizing  expedients,  but  probe  the 
defects  of  the  Constitution  to  the  bottom."  In  his  letter  to 
Randolph  of  April  8,  1787,  he  said,  "In  truth,  my  ideas  of  a  Madison's 
reform  strike  so  deeply  at  the  old  Confederation,  and  lead  to 
such  a  systematic  change,  that  they  scarcely  admit  of  the 
expedient.  .  .  .  Let  the  National  Government  be  armed  with  a 
1  Madison  Papers,  iii,  Appendix  no.  2.  •  See  above,  p.  34. 


i78 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Provincial 
spirit  in 
Virginia. 


The  great 
invention  not 
gradually 
evolved  in 
Convention. 


Its  work  "cut 
and  dried" 
beforehand. 


positive  and  complete  authority  in  all  cases  where  uniform  meas- 
ures are  necessary,  as  in  trade,  etc."  The  difficulty  was  that 
Washington  and  Madison  had  behind  them  at  home  vigilant 
and  implacable  political  enemies  who  were  eager  to  destroy 
their  work,  however  worthy  it  might  be.  Patrick  Henry, 
Thomas  Nelson,  and  Richard  Henry  Lee  had  refused  even  to 
be  delegates  to  the  Convention;  and,  at  the  close,  even  a  man 
like  George  Mason  was  ready  to  say:  "As  the  Constitution  now 
stands,  he  could  neither  give  it  his  support  nor  vote  in  Virginia; 
and  he  could  not  sign  here  what  he  could  not  support  there." 
To  the  narrowness,  the  selfishness,  the  short-sightedness  of  the 
provincial  spirit  as  embodied  in  such  men,  Madison,  whose 
patriotism  was  ever  working  through  diplomacy,  yielded  mat- 
ters of  form  while  clinging  to  the  substance.  He  was  willing 
to  have  it  appear  that  they  were  only  reforming  the  Articles  of 
Confederation  if,  under  that  veil,  they  could  make  an  entirely 
new  Constitution. 

The  fact  that  during  the  first  hours  of  the  first  day  upon 
which  the  Convention  did  any  real  work  the  entirely  new  plan 
of  federal  government  now  embodied  in  the  existing  Constitu- 
tion was  submitted  in  different  forms  in  two  documents  that 
occupy  sixteen  printed  pages  of  the  "Madison  Papers"  should 
convince  every  one  that  the  theory  that  the  great  invention 
was  gradually  evolved  as  the  proceedings  went  on  is  the  most 
foundationless  of  all  chimeras.  May  29  was  devoted  exclus- 
ively to  the  reception  of  the  two  plans  drafted  by  Madison 
and  Pinckney,  in  which  not  only  every  new  basic  principle 
that  enters  into  the  existing  Constitution  was  carefully  defined, 
but  also  the  greater  part  of  the  details  as  they  were  finally 
worked  out  by  the  Committee  of  Detail  to  which  the  Pinckney 
plan  was  referred  on  July  26.  Despite  the  long-standing  popu- 
lar misconception  to  the  contrary,  no  deliberative  body  ever 
had  its  work  so  cut  out  and  arranged  beforehand  as  the  Fed- 
eral Convention  of  1787.  It  may  be  said  without  the  slightest 
exaggeration  that  the  creative  work  that  has  made  it  immortal 
was  finished  before  it  ever  met.  From  May  29  to  the  close,  the 
single  question  before  the  secret  conclave  was  as  to  the  form 
in  which  the  great  invention  of  February  16,  1783,  should  be 
adapted  to  then  existing  conditions  as  a  working  system  of 
1  Madison  Papers ,  iii,  1594. 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  179 

government.  The  Committee  of  the  Whole,  to  which  both  the 
Pinckney  plan  and  the  Virginia  Resolutions  had  been  referred, 
opened  the  battle  on  May  30,  with  the  election  of  Gorham  as  Discussion  in 
chairman,  and  continued  it  until  June  13,  when  it  rose  and  t^^^  ° 
reported  to  the  House  the  results  of  its  deliberations  in  the  began  May  30. 
form  of  nineteen  resolutions.  It  is  certainly  notable  that  as  a 
prelude  to  the  debate,  the  basic  suggestion  Webster  had  been 
the  first  to  make  was  adopted  in  this  form:  "that  a  national 
government  ought  to  be  established,  consisting  of  a  supreme 
legislative,  executive,  and  judiciary."  Pierce  Butler,  recogniz- 
ing the  wisdom  of  applying  to  a  federal  system  such  a  division 
first  popularized  by  Montesquieu  in  connection  with  single  Division  of  the 
states,  said  "that  he  had  opposed  the  grant  of  powers  to  Con- 
gress heretofore,  because  the  whole  power  was  vested  in  one 
body.  The  proposed  distribution  of  the  powers  with  different 
bodies  changed  the  case,  and  would  induce  him  to  go  great 
lengths."  Gouverneur  Morris  "explained  the  distinction 
between  a  federal  and  a  national,  supreme  government;  the 
former  being  a  mere  compact  resting  on  the  good  faith  of  the 
parties;  the  latter  having  a  complete  and  compulsive  operation. 
He  contended  that  in  all  communities  there  must  be  one 
supreme  power  and  one  only."  Roger  Sherman,  who  took  his 
seat  on  that  day,  while  admitting  that  larger  faculties  must  be 
bestowed  on  the  new  creation,  was  not  willing  to  do  more  at 
that  time  than  vest  in  it  the  power  to  raise  its  own  revenue.1 

Webster's  basic  contention  as  to  the  division  into  two  houses  Division  of  l 
of  a  federal  legislature  was  accepted  on  May  31,  in  this  form: 
"That  the  national  legislature  ought  to  consist  of  two 
branches,"  —  a  conclusion  "agreed  to  without  debate,  or  dis- 
sent, except  that  of  Pennsylvania,  given  probably  from  complai- 
sance to  Dr.  Franklin,  who  was  understood  to  be  partial  to  a 
single  house  of  legislation."  2  Beyond  that  point  Webster  had 
not  gone;  upon  the  menacing  and  difficult  questions  involved 
in  the  organization  of  the  two  houses  he  had  shed  no  light ;  the 
honor  of  solving  them  belongs  to  the  Convention  alone.  That 
Pandora's  box,  involving,  as  it  did,  not  only  the  question  of 
slavery  but  the  jealousy  and  distrust  existing  between  the 
smaller  and  larger  states,  had  been  opened  on  May  30,  by 
Hamilton,  who  moved  "that  the  rights  of  suffrage  in  the 
1  Madison  Papers,  ii,  746-747.  *  Madison  Papers,  ii,  753. 


iSo 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Suffrage  and 
representation. 


Scope  of 

legislative 

power. 


Use  of  force 
against  a 
state. . 


Organization 
of  the  execu- 
tive power. 


national  legislature  ought  to  be  proportioned  to  the  number 
of  free  inhabitants."  In  order  to  cut  off  irritating  debate  the 
motion  was  postponed ;  and  Madison  moved  in  more  general 
terms  "that  the  equality  of  suffrage  established  by  the  Articles 
of  Confederation  ought  not  to  prevail  in  the  national  legis- 
lature; and  that  an  equitable  ratio  of  representation  ought  to 
be  substituted."  On  the  next  day,  after  a  failure  to  reach  any 
definite  result  as  to  that  part  of  the  plan,  "the  cases  in  which 
the  national  legislature  ought  to  legislate,  was  next  taken  into 
discussion.  On  the  question  whether  each  branch  should 
originate  laws,  there  was  an  unanimous  affirmative,  without 
debate.  On  the  question  for  transferring  all  the  legislative 
powers  of  the  existing  Congress  to  this  assembly,  there  was 
also  an  unanimous  affirmative,  without  debate."  Almost 
unanimous  approval  was  also  given  to  "the  proposition  for 
giving  legislative  power  in  all  cases  to  which  the  state  legisla- 
tures were  individually  incompetent."  Then  it  was  that  Madi- 
son said  "that  he  had  brought  with  him  into  the  Convention  a 
strong  bias  in  favor  of  an  enumeration  and  definition  of  the 
powers  necessary  to  be  exercised  by  the  national  legislature; 
but  also  had  brought  doubts  concerning  its  practicability.  His 
wishes  remained  unaltered;  but  his  doubts  had  become 
stronger."  l  "  The  last  clause  of  the  Sixth  Resolution,  author- 
izing an  exertion  of  the  force  of  the  whole  against  a  delinquent 
state"  came  next  into  consideration.  "The  use  of  force 
against  a  state,"  said  Madison,  "would  look  more  like  a  de- 
claration of  war  than  an  infliction  of  punishment;  and  would 
probably  be  considered  by  the  party  attacked  a  dissolution  of 
all  previous  compacts  by  which  it  might  be  bound."  * 

With  the  field  thus  cleared,  the  Convention  proceeded  on 
June  I  to  consider  the  organization  of  the  executive  power. 
Webster's  proposal  was  that  "the  supreme  executive  author- 
ity" should  be  vested  in  a  Council  of  State,  "one  of  which  to  be 
appointed  President  by  Congress."  The  Pinckney  plan  pro- 
vided that  "the  executive  power  of  the  United  States  shall  be 
vested  in  a  President  of  the  United  States  of  America,  which 
shall  be  his  style,  and  his  title  shall  be  His  Excellency.  He 
shall  be  elected  for  years;  and  shall  be  reeligible."  The 

Virginia  plan  —  avoiding  the  question  whether  the  national 
1  Madison  Papers,  ii,  750,  751,  759,  760.  «  Ibid.  761. 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  l8l 

Executive  should  be  one  or  many  —  provided  "that  a  na- 
tional Executive  shall  be  instituted  ;  to  be  chosen  by  the  na- 
tional legislature,  for  the  term  of  ;  to  receive  punc- 
tually, at  stated  times,  a  fixed  compensation  for  services  ren- 
dered, in  which  no  increase  nor  diminution  shall  be  made,  so  as 
to  affect  the  magistracy  existing  at  the  time  of  increase  or 
diminution;  and  to  be  ineligible  a  second  time."  In  supporting 
his  proposal  Pinckney  said  he  "was  for  a  vigorous  executive, 
but  was  afraid  the  executive  powers  of  the  existing  Congress 
might  extend  to  peace  and  war,  etc. ;  which  would  render  the 
Executive  a  monarchy  of  the  worst  kind,  to  wit,  an  elective 
one."  l   Mr.  Wilson  moved  that  the  Executive  consist  of  a  To  consist  of 
single  person.  Mr.  C.  Pinckney  seconded  the  motion,  so  as  to  a  smgle  P*1300- 
read  "that  a  national  Executive,  to  consist  of  a  single  person, 
be  instituted."  Rutledge  then  supported  Pinckney  and  Wilson, 
saying  "he  was  for  vesting  the  executive  power  in  a  single 
person,  though  he  was  not  for  giving  him  the  power  of  war  or 
peace.  A  single  man  would  feel  the  greatest  responsibility  and 
administer  the  public  affairs  best."    Gerry,  supporting  the 
Webster  idea,  said  he  "  favored  the  policy  of  annexing  a  council 
to  the  Executive,  in  order  to  give  weight  and  inspire  confidence." 
Mr.  Randolph  "strenuously  opposed  an  unity  in  the  executive 
magistracy.    He  regarded  it  as  the  foetus  of  monarchy."    To 
that  Wilson  retorted  "that  unity  in  the  Executive,  instead  of 
being  the  foetus  of  monarchy,  would   be  the  best  safeguard 
against  tyranny.  He  repeated,  that  he  was  not  governed  by  the 
British  model,  which  was  inapplicable  to  the  situation  of  this 
country;  the  extent  of  which  was  so  great,  and  the  manners  so 
republican,  that  nothing  but  a  great  confederated  republic 
would  do  for  it."  At  that  point,  in  the  hope  of  spreading  oil 
on  the  waters,  Madison  induced  the  Convention,  before  finally 
choosing  between  a  single  or  plural  executive,  to  determine 
that  it  should  be  clothed  "with  power  to  carry  into  effect  the  Powers  of  the 
national  laws,  to  appoint  to  offices  in  cases  not  otherwise  pro-  Executlve- 
vided  for."    Returning  then  to  the  original  question,  Wilson 
said,  "  Chimerical  as  it  may  appear  in  theory,  I  am  for  an  elec- 
tion by  the  people.   Experience  in  New  York  and  Massachu- 
setts shows  that  an  election  of  the  first  magistrate  by  the  people 
at  large  is  both  a  convenient  and  a  successful  mode."   Sher- 
1  Madison  Papers,  ii,  762;  Elliot,  140. 


182 


THE  AMERICAN  CONSTITUTION 


[Cn. 


To  be  chosen 
by  electors. 


The  veto 
power. 


Organization 
of  judiciary. 


man  replied:  "I  am  for  its  appointment  by  the  national  legis- 
lature, and  for  making  it  absolutely  dependent  on  that  body 
whose  will  it  is  to  execute.  An  independence  of  the  Executive 
of  the  supreme  legislature  is  the  very  essence  of  tyranny." 
After  debate  as  to  the  length  of  the  term,  it  was  settled  by 
a  close  vote  that  the  Executive  should  hold  for  a  term  of  seven 
years,  and  should  not  be  twice  eligible.1  But  the  problem  of 
problems  still  remained  unsolved.  How  should  the  Executive 
be  chosen?  The  far-sighted  Wilson  who  had  suggested  an  elec- 
tion by  the  people  — ' '  chimerical  as  it  may  appear  in  theory ' '  — 
then  proposed  borrowing  from  the  constitution  of  Maryland 
that  electors  chosen  in  districts  of  the  several  states  should 
meet  and  elect  the  Executive  by  ballot,  but  not  from  their  own 
body.  As  the  time  was  not  yet  ripe  for  the  development  of  that 
idea,  the  Convention  determined  for  the  moment  to  vest  the 
choice  of  the  Executive  in  the  national  legislature.  After  a 
motion  by  Dickinson  for  making  the  Executive  removable  by 
the  national  legislature  at  the  request  of  the  majority  of  the 
state  legislatures  had  been  decisively  defeated,  it  was  agreed 
that  he  should  "be  removable  on  impeachment  and  conviction 
of  malpractice  or  neglect  of  duty."  When  a  proposal  was  made 
to  surround  the  Executive  with  a  council  of  revision,  composed 
of  the  Executive  and  a  certain  number  of  the  judiciary,  "Mr. 
Gerry  doubts  whether  the  judiciary  ought  to  form  a  part  of 
it,  as  they  will  have  a  sufficient  check  against  encroachments 
on  their  own  department  by  their  exposition  of  the  laws,  which 
involved  a  power  of  deciding  on  their  constitutionality." 
Upon  his  motion,  after  the  example  of  his  own  state,  the  veto 
power  was  confided  to  the  Executive  alone,  subject  to  be  over- 
ruled by  two  thirds  of  each  branch.2 

Considering  that  the  Convention  was  composed  chiefly  of 
lawyers,  it  is  remarkable  how  little  conflict  took  place  over  the 
organization  of  the  federal  judiciary.  We  have  seen  heretofore 
that  Webster  not  only  clearly  defined  the  jurisdiction  of  the 
Supreme  Court,  original  and  appellate,  but  also  outlined  the 
itinerant  judicature,  with  "judges  of  law  and  chancery." 

The  Virginia  plan  proposed  "that  a  national  judiciary  be 
established ;  to  consist  of  one  or  more  supreme  tribunals,  and 

1  Madison  Papers,  ii,  762-767;  8  Madison  Papers,  ii,  768-783; 
Elliot,  143.  Elliot,  149-150. 


VII.]      THE  FEDERAL   CONVENTION  AND  ITS  WORK  183 

of  inferior  tribunals,  to  be  chosen  by  the  national  legislature; 
to  hold  their  offices  during  good  behavior,  and  to  receive  punc- 
tually, at  stated  times,  fixed  compensation  for  their  services,  in 
which  no  increase  or  diminution  shall  be  made,  so  as  to  affect 
the  persons  actually  in  office  at  the  time  of  such  increase  or 
diminution." 

The  Pinckney  plan  proposed  that  "the  judges  of  the  courts 
shall  hold  their  offices  during  good  behavior;  and  receive 
a  compensation,  which  shall  not  be  increased  or  diminished 
during  their  continuance  in  office.  One  of  these  courts  shall 
be  termed  the  Supreme  Court;  whose  jurisdiction  shall  extend 
to  all  cases  arising  under  the  laws  of  the  United  States,  or 
affecting  ambassadors,  or  other  public  ministers  and  consuls; 
to  the  trial  of  impeachment  of  officers  of  the  United  States ;  to 
all  cases  of  admiralty  and  maritime  jurisdiction";  —  with  the 
line  clearly  drawn  between  such  jurisdiction  as  was  to  be  orig- 
inal and  such  as  was  to  be  appellate. 

In  the  light  of  these  suggestions  the  Convention  resolved  on 
June  4,  "that  a  national  judiciary  be  established,  to  consist  of 
one  supreme  tribunal,  and  of  one  or  more  inferior  tribunals."  One  supreme 
On  the  next  day  when  a  jealous  opposition  to  the  transfer  of 
business  from  state  to  federal  courts  developed,  a  motion  to 
dispense  with  the  inferior  federal  tribunals  prevailed, — despite 
Madison's  contention  "that  unless  inferior  tribunals  were 
dispersed  throughout  the  Republic  with  final  jurisdiction  in 
many  cases,  appeals  would  be  multiplied  to  a  most  oppressive 
degree.  ...  A  Government  without  a  proper  executive  and 
judiciary,  would  be  the  mere  trunk  of  a  body,  without  arms 
or  legs  to  act  or  move."  Wilson  and  Madison  then  plucked 
victory  from  defeat  by  having  the  motion  to  strike  out  "in- 
ferior tribunals"  modified  by  the  provision  "that  the  national 
legislature  be  empowered  to  institute  inferior  tribunals." 

Thus  the  distinction  was  drawn  between  their  actual  estab- 
lishment and  the  right  to  establish  them  in  the  future.  All  Tenure  and 
agreed  that  the  judges  should  hold  office  during  good  behav- 
ior  and  that  their  compensation  should  be  safe  from  diminution 
during  the  period  of  service.  There  was,  however,  a  sharp  dif- 
ference of  opinion  as  to  the  method  of  their  selection.  No  favor 
was  given  to  the  Virginia  plan  of  intrusting  their  appointment 
to  the  legislature.  When  that  came  up  for  discussion,  Wilson 


i84 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Organization 
ofthe  legis- 
lature. 


Combination 
of  state  and 
national  gov- 
ernments. 


proposed  to  vest  it  in  the  Executive,  and  Madison  in  the 
Senate.    For  the  moment  no  action  was  taken.1 

On  June  6,  Charles  Pinckney  reopened  the  question  of 
questions  by  moving  "that  the  first  branch  of  the  national 
legislature  be  elected  by  the  state  legislatures,  and  not  by  the 
people."  Sherman  said :  "  If  it  were  in  view  to  abolish  the  state 
governments,  the  elections  ought  to  be  by  the  people.  If  the 
state  governments  are  to  be  continued,  it  is  necessary,  in  order 
to  preserve  harmony  between  the  national  and  state  govern- 
ments, that  the  elections  to  the  former  should  be  made  by  the 
latter."  Dickinson  "considered  it  essential,  that  one  branch  of 
the  legislature  should  be  drawn  immediately  from  the  people; 
and  expedient,  that  the  other  should  be  chosen  by  the  legisla- 
tures of  the  states.  This  combination  of  the  state  governments 
with  the  national  government  was  as  politic  as  it  was  unavoid- 
able." On  the  next  day  he  moved  "that  the  members  of  the 
second  branch  [now  called  the  Senate]  ought  to  be  chosen  by 
the  individual  legislatures,"  —  an  implication  that  each  of  the 
smaller  states  should  elect  at  least  one  Senator.  Against  that 
claim  of  equality  in  one  branch  of  the  national  legislature 
protests  came  in  many  and  emphatic  forms  from  the  larger 
states.  Wilson  said  "he  wished  the  Senate  to  be  elected  by  the 
people,  as  well  as  the  other  branch;  the  people  might  be  di- 
vided into  proper  districts  for  the  purpose;  and  he  moved  to 
postpone  the  motion  of  Mr.  Dickinson,  in  order  to  take  up  one 
of  that  import."  Madison  said  that  "if  the  motion  [of  Mr. 
Dickinson]  should  be  agreed  to,  we  must  depart  from  the  doc- 
trine of  proportional  representation,  or  admit  into  the  Senate 
a  very  large  number  of  members.  The  first  is  inadmissible, 
being  evidently  unjust.  The  second  is  inexpedient."  Cotes- 
worth  Pinckney  said  "if  each  of  the  small  states  should  be  al- 
lowed one  senator,  there  will  be  eighty  at  least."  After  Mason 
had  closed  the  debate  with  the  declaration  that  "the  state 
legislatures  ought  to  have  some  means  of  defending  themselves 
against  encroachments  of  the  national  government,"  the  vote 
was  taken;  and  with  one  voice,  the  selection  of  the  second 


1  Madison  Papers,  ii,  791-855; 
Elliot,  155,  156,  1 88.  It  was  agreed 
"that  the  jurisdiction  of  the  national 
judiciary  shall  extend  to  cases  which 
respect  the  collection  of  the  national 


revenue,  impeachments  of  any  na- 
tional officers,  and  questions  which 
involve  the  national  peace  and 
harmony." 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  185 

branch  or  Senate  was  given  to  the  state  legislatures.1  In  that 
way  the  states,  as  such,  were  recognized.  But  on  the  9th,  the  States,  as  such, 
equality  of  the  smaller  states  was  again  challenged  when  the  ***&**& 
committee  resumed  consideration  of  the  clause  relating  to 
the  rule  of  suffrage  in  the  national  legislature.  Brearley,  Chief 
Justice  of  New  Jersey,  said  that:  "When  the  proposition  for 
destroying  the  equality  of  votes  came  forward,  he  was  aston- 
ished, he  was  alarmed.  Is  it  fair,  then,  it  will  be  asked,  that 
Georgia  should  have  an  equal  vote  with  Virginia?  He  would  Suffrage  in 
not  say  it  was.  What  remedy  then?  One  only,  that  a  map  of  t^^f11 
the  United  States  be  spread  out,  that  all  the  existing  bound- 
aries be  erased,  and  that  a  new  partition  of  the  whole  be  made 
into  thirteen  equal  parts."  When,  after  that  angry  outburst, 
the  Convention  reassembled  on  Monday,  the  nth,  Franklin, 
the  peacemaker,  read  a  carefully  prepared  paper  intended  to 
soften  the  conflict  between  four  Southern  and  two  Northern 
States,  demanding  representation  in  some  degree  proportioned 
to  numbers,  and  two  Northern  and  one  Southern  State,  de- 
manding equal  representation,  —  Connecticut  standing  as  a 
mediator  between  them.  When  the  test  came  on  the  motion 
"that  the  right  of  suffrage  in  the  first  branch  of  the  national 
legislature  ought  not  to  be  according  to  the  rule  established  in 
the  Articles  of  Confederation,  but  according  to  some  equitable  Larger  states 
ratio  of  representation,"  it  passed  by  a  vote  of  seven  states  to  pre 
three,  Maryland  being  divided.2  That  equitable  ratio  was 
found  at  last  in  the  precedent  set  in  April,  1783,  when  Con- 
gress had  apportioned  the  supplies  of  the  states  for  the  com- 
mon treasury  to  the  whole  number  of  their  free  inhabitants 
and  three  fifths  of  other  persons.  At  that  juncture  Sherman 
moved  "that  a  question  be  taken,  whether  each  state  shall 
have  one  vote  in  the  second  branch.  Everything,  he  said, 
depended  on  this.  The  smaller  states  would  never  agree  to  the 
plan  on  any  other  principle  than  an  equality  of  suffrage  in  this 
branch."  It  was  only  possible,  however,  to  bring  five  states 

1  "Massachusetts,     Connecticut,  *  "It  was  then  moved  by  Mr. 

New  York,  Pennsylvania,  Delaware,  Rutledge,  seconded  by  Mr.  Butler, 

Maryland,  Virginia,  North  Carolina,  to  add  to  the  words,  'equitable  ratio 

South     Carolina,     Georgia,  —  aye,  of  representation,'  at  the  end  of  the 

10."    See  Madison  Papers,  ii,  800-  motion  just  agreed  to,  the  words 'ac- 

821;  Elliot,  170.  cording  to  the  quotas  of  contribu- 
tion."' Madison  Papers,  ii,  842. 


1 86 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Senators  to  be 
apportioned 
according  to 
population. 


New  plan 
of  federal 
government 
reported 
June  13 


against  the  six  demanding  proportional  representation.  When 
another  test  of  strength  resulted  in  a  vote  of  six  states  against 
five,  the  outcome  was  a  settlement  that  apportioned  the  Sena- 
tors among  the  states  according  to  representative  population, 
each  state  being  conceded  at  least  one  vote.  After  guarantee- 
ing to  each  state  a  republican  form  of  government,  after  refus- 
ing to  guarantee  to  any  state  its  territory,  after  holding  that  the 
new  Constitution  should  be  subject  to  "amendment  whenso- 
ever it  should  seem  necessary,"  after  requiring  oaths  from  the 
members  of  state  governments  to  observe  the  national  Consti- 
tution and  laws,  —  the  Convention  brought  the  proceedings  of 
that  eventful  day  to  a  close.1  On  the  I2th  it  was  determined 
that  "  the  new  system  "  should  be  referred  "  to  the  people  of  the 
United  States  for  ratification";  that  the  members  of  the  popu- 
lar branch  should  be  chosen  for  three  years,  and  not  annually 
as  proposed  by  Sherman  and  Ellsworth; z  that  the  senatorial 
qualification  of  age  should  be  fixed  at  thirty  years,  and  that 
Senators  should  be  permitted  to  serve  seven  years.  On  the  1 3th, 
after  striking  out  the  clause  relating  to  the  jurisdiction  of^the 
national  tribunals  in  such  a  way  as  to  leave  full  room  for  their 
organization,  and  after  extending  that  jurisdiction  in  certain 
important  particulars,  the  Committee  rose  and  reported  to 
the  House  its  conclusions  in  the  form  of  nineteen  resolutions 
that  embodied  completely  the  entirely  new  plan  of  federal 
government  —  called  by  the  Convention  "  the  new  system"  — 
announced  to  the  world  by  Pelatiah  Webster,  as  his  invention, 
February  16,  1783.  Nothing  demonstrates  so  conclusively  the 
thoroughness  of  the  conversion  wrought  by  Webster's  publica- 
tion as  the  fact  that  during  the  narrow  limits  of  the  thirteen 
sessions  that  intervened  between  May  29  and  June  13,  his 
invention  was  accepted  as  a  whole  with  really  no  opposition,  so 
far  as  its  vitals  were  concerned.  Such  opposition  as  was  made 
proceeded  from  the  smaller  states,  earnestly  and  justly  insist- 
ing upon  an  equality  of  representation  in  at  least  one  branch 
of  the  national  legislature,  a  purely  political  and  not  organic 
question  with  which  Webster,  in  his  wisdom,  had  not  at- 
tempted to  deal.  Only  the  four  years  of  education  that  pre- 
ceded the  Convention  made  possible  so  prompt  an  acceptance 

1  Madison  Papers,  ii,  846;  Elliot,      England  will  never  give  up  the  point 
181.  of  annual  elections." 

*  Gerry  said:  "The  people  of  New 


VII.]      THE  FEDERAL   CONVENTION  AND  ITS  WORK  187 

of  the ' '  wholly  novel  theory, ' '  in  the  form  in  which  Madison  and  in  the  form  in 
Pinckney  had  restated  it.  And  here  let  the  fact  be  again  ^pi^ckneT 
emphasized  that  of  the  two  restatements  that  presented  by  had  restated  it. 
Pinckney  was  by  far  the  most  complete,  —  it  was  not  a  mere 
tableau  of  general  principles,  it  was  a  "system"  of  govern- 
ment. It  is  therefore  reasonable  to  presume  that  the  more  fre- 
quent references  in  the  debates  to  the  Virginia  plan,  as  such, 
was  rather  the  result  of  a  commendable  spirit  of  deference  to 
the  prestige  of  that  great  commonwealth  than  a  tribute  to  the 
superiority  of  the  plan  itself.  However  that  may  be,  the  Nine- 
teenth Resolution,  presented  on  June  13,  triumphantly  vindi- 
cates the  assertion  that,  after  discussions  occupying  only  thir- 
teen sessions,  the  great  invention  of  February  16,  1783,  was 
transformed  into  "the  new  system"  of  federal  government 
now  embodied  in  the  existing  Constitution  of  the  United  States. 
The  report  presented  by  Mr.  Gorham  was  in  these  words: 
"i.  Resolved,  that  it  is  the  opinion  of  this  Committee,  that  Text  of 
a  national  government  ought  to  be  established,  consisting  of  a  resolutions- 
supreme  legislature,  executive,  and  judiciary.  2.  Resolved,  that 
the  national  legislature  ought  to  consist  of  two  branches.  3 .  Re- 
solved, that  the  members  of  the  first  branch  of  the  national 
legislature  ought  to  be  elected  by  the  people  of  the  several 
states  for  the  term  of  three  years,  to  receive  fixed  stipends  by 
which  they  may  be  compensated  for  the  devotion  of  their  time 
to  the  public  service,  to  be  paid  out  of  the  national  treasury; 
to  be  ineligible  to  any  office  established  by  a  particular  state, 
or  under  the  authority  of  the  United  States,  (except  those 
peculiarly  belonging  to  the  functions  of  the  first  branch,)  dur- 
ing the  term  of  service,  and  under  the  national  government  for 
the  space  of  one  year  after  its  expiration.  4.  Resolved,  that  the 
members  of  the  second  branch  of  the  national  legislature  ought 
to  be  chosen  by  the  individual  legislatures ;  to  be  of  the  age  of 
thirty  years  at  least ;  to  hold  their  offices  for  a  term  sufficient 
to  insure  their  independence,  namely,  seven  years;  to  receive 
fixed  stipends  by  which  they  may.  be  compensated  for  the 
devotion  of  their  time  to  the  public  service,  to  be  paid  out  of 
the  national  treasury ;  to  be  ineligible  to  any  office  established 
by  a  particular  state,  or  under  the  authority  of  the  United 
States,  (except  those  peculiarly  belonging  to  the  functions  of 
the  second  branch,)  during  the  term  of  service,  and  under  the 


188  THE  AMERICAN  CONSTITUTION  [Cn. 

national  government  for  the  space  of  one  year  after  its  expir- 
ation. 5.  Resolved,  that  each  branch  ought  to  possess  the 
right  of  originating  acts.  6.  Resolved,  that  the  national  legis- 
lature ought  to  be  empowered  to  enjoy  the  legislative  rights 
vested  in  Congress  by  the  Confederation;  and  moreover  to 
legislate  in  all  cases  to  which  the  separate  states  are  incom- 
petent, or  in  which  the  harmony  of  the  United  States  may  be 
interrupted  by  the  exercise  of  individual  legislation ;  to  negative 
all  laws  passed  by  the  several  states  contravening,  in  the 
opinion  of  the  national  legislature,  the  Articles  of  Union,  or 
any  treaties  subsisting  under  the  authority  of  the  Union.  7.  Re- 
solved, that  the  rights  of  suffrage  in  the  first  branch  of  the 
national  legislature  ought  not  to  be  according  to  the  rule 
established  in  the  Articles  of  Confederation,  but  according  to 
some  equitable  ratio  of  representation,  namely,  in  proportion 
to  the  whole  number  of  white  and  other  free  citizens  and  inhab- 
itants, of  every  age,  sex,  and  condition,  including  those  bound 
to  servitude  for  a  term  of  years,  and  three  fifths  of  all  other 
persons,  not  comprehended  in  the  foregoing  description,  except 
Indians  not  paying  taxes  in  each  state.  8.  Resolved,  that  the 
rights  of  suffrage  in  the  second  branch  of  the  national  legisla- 
ture ought  to  be  according  to  the  rule  established  for  the  first. 
9.  Resolved,  that  a  national  executive  be  instituted,  to  consist 
of  a  single  person ;  to  be  chosen  by  the  national  legislature,  for 
the  term  of  seven  years ;  with  power  to  carry  into  execution  the 
national  laws ;  to  appoint  to  offices  in  cases  not  otherwise  pro- 
vided for;  to  be  ineligible  a  second  time;  and  to  be  removable 
on  impeachment  and  conviction  of  malpractices  and  neglect  of 
duty;  to  receive  a  fixed  stipend  by  which  he  may  be  com- 
pensated for  the  devotion  of  his  time  to  the  public  service,  to 
be  paid  out  of  the  national  treasury.  10.  Resolved,  that  the 
national  executive  shall  have  the  right  to  negative  any  legis- 
lative act  which  shall  not  be  afterwards  passed  by  two  thirds 
of  each  branch  of  the  national  legislature,  n.  Resolved,  that 
a  national  judiciary  be  established,  to  consist  of  one  supreme 
tribunal,  the  judges  of  which  shall  be  appointed  by  the  second 
branch  of  the  national  legislature,  to  hold  their  offices  during 
good  behavior,  and  to  receive  punctually,  at  stated  times,  a 
fixed  compensation  for  their  services,  in  which  no  increase  or 
diminution  shall  be  made,  so  as  to  affect  the  persons  actually 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  189 

in  office  at  the  time  of  such  increase  or  diminution.  12.  Re- 
solved, that  the  national  legislature  be  empowered  to  appoint 
inferior  tribunals.  13.  Resolved,  that  the  jurisdiction  of  the 
national  judiciary  shall  extend  to  all  cases  which  respect 
the  collection  of  the  national  revenue,  impeachments  of  any 
national  officers,  and  questions  which  involve  the  national 
peace  and  harmony.  14.  Resolved,  that  provision  ought  to  be 
made  for  the  admission  of  states  lawfully  arising  within  the 
limits  of  the  United  States,  whether  from  a  voluntary  junction 
of  government  and  territory,  or  otherwise,  with  the  consent  of 
a  number  of  voices  in  the  national  legislature  less  than  the 
whole.  15.  Resolved,  that  provision  ought  to  be  made  for  the 
continuance  of  Congress  and  their  authorities  and  privileges, 
until  a  given  day,  after  the  reform  of  the  Articles  of  Union 
shall  be  adopted,  and  for  the  completion  of  their  engagements. 
1 6.  Resolved,  that  a  republican  constitution,  and  its  existing 
laws,  ought  to  be  guaranteed  to  each  state,  by  the  United 
States.  17.  Resolved,  that  provision  ought  to  be  made  for  the 
amendment  of  the  Articles  of  Union,  whensoever  it  shall  seem 
necessary.  18.  Resolved,  that  the  legislative,  executive,  and 
judiciary  powers  within  the  several  states  ought  to  be  bound 
by  oath  to  support  the  Articles  of  Union.  19.  Resolved,  that 
the  amendments  which  shall  be  offered  to  the  Confederation 
by  the  Convention  ought,  at  a  proper  time  or  times  after  the 
approbation  of  Congress,  to  be  submitted  to  an  assembly  or 
assemblies  recommended  by  the  several  legislatures,  to  be  ex- 
pressly chosen  by  the  people  to  consider  and  decide  thereon."1 

The  triumph  of  those  who  created  an  entirely  new  type  of  "The  scheme 
federal  government  through  the  nineteen  resolutions  of  June  "0!^f«iJ^aUy 
13  was  complete.    The  nature  of  the  revolution   they  had  dared  Lansing, 
wrought  was  tersely  described  by  Lansing,  who  said:  "The 
scheme  is  itself  totally  novel.   There  is  no  parallel  to  it  to  be 
found."  2  But  there  is  no  reason  to  believe  that  that  fact  would 
have  militated  against  the  result,  in  the  absence  of  the  bitter- 
ness engendered  by  the  unjust  and  intolerant  action  of  the 
larger  states  in  depriving  the  smaller  of  equality  of  represent- 
ation in  both  branches  of  the  national  legislature.   "Previous 
to  the  arrival  of  the  majority  of  the  states,  the  rule  by  which 

1  Madison  Papers,  ii,  858-861;  Elliot,  185. 
*  Madison  Papers,  ii,  869. 


190 


THE  AMERICAN  CONSTITUTION 


[CH. 


Injustice  to 
the  smaller 


They  form 
a  coalition. 


New  Jersey 
plan  their 
counterblast. 


they  ought  to  vote  in  the  Convention  had  been  made  the  sub- 
ject of  conversation  among  the  members  present.  It  was 
pressed  by  Gouverneur  Morris  and  favored  by  Robert  Morris 
and  others  from  Pennsylvania,  that  the  large  states  should 
unite  in  firmly  refusing  to  the  small  states  an  equal  vote,  as 
unreasonable,  and  as  enabling  the  small  states  to  negative  every 
good  system  of  government,  which  must,  in  the  nature  of 
things,  be  founded  on  a  violation  of  that  equality."  At  that 
juncture  Virginia,  greatly  to  her  honor,  "discountenanced  and 
stifled  the  project."  But  unfortunately  Virginia,  as  the 
leader  of  the  larger  or  national  states,  changed  her  attitude, 
and  became  the  champion  of  an  injustice  that  came  very  near 
wrecking  all  that  had  been  done.  As  Madison  warmly  sup- 
ported his  state  in  that  course,  Dickinson  said  to  him,  "You 
see  the  consequence  of  pushing  things  too  far.  Some  of  the 
members  from  the  smaller  states  wish  for  two  branches  in  the 
General  Legislature  and  are  friends  to  a  good  National  Gov- 
ernment; but  we  would  sooner  submit  to  foreign  power,  than 
submit  to  be  deprived,  in  both  branches  of  the  legislature,  of  an 
equality  of  suffrage,  and  thereby  be  thrown  under  the  domina- 
tion of  the  larger  states."  Those  who  rebelled  against  that 
injustice  formed  a  coalition  concerted  among  the  members 
from  New  Jersey,  New  York,  Connecticut,  and  Delaware, 
including  perhaps  Luther  Martin  of  Maryland,  who,  as  Madi- 
son tells  us,  "made  with  them  a  common  cause,  though  on  dif- 
ferent principles.  Connecticut  and  New  York  were  against 
a  departure  from  the  principle  of  the  Confederation,  wishing 
rather  to  add  a  few  more  new  powers  to  Congress  than  to  sub- 
stitute a  national  government.  The  states  of  New  Jersey  and 
Delaware  were  opposed  to  a  national  government,  because  its 
patrons  considered  a  proportional  representation  of  the  states 
as  the  basis  of  it.  The  eagerness  displayed  by  the  members 
opposed  to  a  national  government,  from  these  different  mot- 
ives, began  now  to  produce  serious  anxiety  for  the  result  of 
the  Convention."  2  As  a  counterblast  to  the  result  reached  on 
June  13,  the  coalition,  speaking  through  Paterson  of  New 
Jersey,  asked  on  the  next  day  "  that  further  time  might  be 
allowed  them  to  contemplate  the  plan  reported  from  the  Com- 

1  Madison  Papers,  ii,  726,  note. 
«  Ibid.,  ii,  862-863,  note. 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  191 

mittee  of  the  Whole,  and  to  digest  one  purely  federal,  and  con- 
tradistinguished from  the  reported  plan."  On  the  I5th  Pater- 
son  presented  the  well-known  New  Jersey  plan,  which  he 
offered  as  a  substitute  for  the  new  creation,  and,  in  order  to 
give  it  "a  fair  deliberation,  it  was  agreed,  that  it  should  be  re- 
ferred to  a  Committee  of  the  Whole;  and  that,  in  order  to  place 
the  two  plans  in  due  comparison,  the  other  should  be  recom-  !</ 
mitted."  As  the  New  Jersey  plan  simply  proposed  a  revision 
of  the  Articles  of  Confederation,  the  Convention  was  at  last 
brought  face  to  face  with  a  choice  between  a  "confederated 
state"  of  the  old  type  and  a  "composite  state"  of  the  new 
type.  The  briefness  and  feebleness  of  the  struggle  made  by 
Paterson  and  his  allies  proves  how  completely  the  old  idea 
had  passed  away.  Despite  the  fact  that  the  leader  of  the  fallen 
cause  spoke  with  the  skill  of  a  veteran  in  advocating  "not  his 
own  opinions,"  but  "the  views  of  those  who  sent  him,"  it  was 
all  in  vain.  The  spectre  of  the  Confederation,  with  its  empty 
skull,  its  empty  pocket,  and  its  boneless  arms,  stood  forth  in  its 
impotence  to  refute  all  he  had  to  say.  After  the  mighty  Wilson 
had  trampled  upon  his  argument,  Pinckney  touched  the  heart  How  it  was 
of  the  matter  when  he  said,  "The  whole  comes  to  this,  as  he 
conceived.  Give  New  Jersey  an  equal  vote,  and  she  will  dis- 
miss her  scruples,  and  concur  in  the  national  system."  The 
general  debate  as  to  the  relative  merits  of  the  two  systems  that 
began  on  the  i6th  ended  on  the  i8th,  when  the  postponement 
of  the  consideration  of  Paterson 's  resolution  was  agreed  to  by 
ten  states. 

Upon  the  heels  of  the  advocate  who  thus  struggled  in  vain  The  Hamilton 
to  uphold  the  primitive  conception  of  the  sovereignty  of  the  plan' 
states  came  the  extreme  exponent  of  the  opposing  school,  who 
said  that  he  "had  been  hitherto  silent  on  the  business  before 
the  Convention,  partly  from  respect  to  others  whose  superior 
abilities,  age,  and  experience  rendered  him  unwilling  to  bring 
forward  ideas  dissimilar  to  theirs ;  and  partly  from  his  delicate 
situation  with  respect  to  his  own  state,  to  whose  sentiments,  as 
expressed  by  his  colleagues,  he  could  by  no  means  accede." 
From  the  Scottish  clan  which  has  given  one  of  the  most  pro- 
found metaphysicians  and  one  of  the  most  creative  mathemati- 
cians to  the  modern  world  came  that  brilliant  offshoot  who  was 
born  in  the  Island  of  Nevis,  in  the  West  Indies,  January  n, 


THE  AMERICAN  CONSTITUTION 


[Ci 


Race-traits  of 
the  soldier- 
statesman. 


Special  apti- 
tude for  eco- 
nomics and 
finance. 


Followed 
Webster's 
initiative. 


1757.  To  the  faculty  for  abstract  reasoning,  to  the  shrewdness 
and  persistence  in  administration  which  Alexander  Hamilton, 
one  of  the  most  precocious  young  men  of  his  time,  drew  from 
his  Scottish  ancestry,  was  united  the  magnetic  charm,  the  viv- 
acity, the  rare  personal  beauty  derived  from  a  French  mother  of 
Huguenot  descent.  In  1772,  spurning  "  the  grovelling  ambition 
of  a  clerk,"  and  resolved  "to  prepare  the  way  for  futurity,"  he 
sailed  from  the  tropics  to  Boston;  in  1773  he  entered  Kings 
(Columbia)  College  at  New  York;  in  1774  he  was  aiding  the 
patriot  cause  with  tongue  and  pen;  in  1776  he  was  made  a  cap- 
tain of  artillery;  and  after  notable  service  at  White  Plains, 
Trenton,  and  Princeton,  he  became  in  March,  1777,  aide-de- 
camp, secretary,  and  confidant  to  Washington.  The  mind  of 
the  young  soldier-statesman  —  who  was  armed  with  a  moral 
dignity  and  earnestness  characteristic  alike  of  Puritan  and 
Huguenot,  with  an  inborn  genius  for  organization,  and  with 
special  aptitude  for  economics  and  finance  —  went  like  an 
arrow  to  the  heart  of  the  problem  with  which  the  financiers  of 
the  Revolution  were  struggling  in  vain.  He  was  one  of  the  very 
first  to  entertain  the  thought,  even  if  he  did  not  express  it  pub- 
licly,1 that  a  Federal  Convention  should  be  called  for  the  pur- 
pose of  making  an  entirely  new  Constitution.  And,  as  stated 
heretofore,  we  find  him  in  1 780  supporting  the  efforts  of  Pela- 
tiah  Webster,  thirty-one  years  his  senior,  who  was  then  urging 
the  appointment  of  a  financier,  that  is,  of  a  competent  single 
officer  to  take  charge  of  the  finances  in  place  of  the  committees 
or  boards  who  had  hitherto  been  intrusted  with  them.2  When  on 
February  16,  1783,  Webster  gave  to  the  world  the  entirely  new 
plan  of  government  the  Federal  Convention  was  destined  to 
adopt,  Hamilton,  feeling  the  impact  of  the  blow,  promptly  noti- 
fied Congress,  for  the  first  time,  of  his  purpose  to  submit  to  it 
a  plan  for  the  calling  of  a  general  convention,  whose  "object 
would  be  to  strengthen  the  Federal  Constitution."  Finally, 
when,  largely  through  his  efforts,  the  trade  convention  that 
met  at  Annapolis  in  1786  reassembled  at  Philadelphia  as  the 
Federal  Convention  of  1787,  Hamilton  came  as  a  deputy  from 
New  York  with  the  great  invention  of  February  16,  1783, 


1  See  his  private  letter  to  James 
Duane  of  September  3,  1780,  re- 


ferred to  in  Gaillard  Hunt's  Life  of 
James  Madison,  108. 
1  See  above,  p.  161. 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  193 

restated  in  the  form  of  a  finished  constitution.  Of  the  famous 
oration  in  which  he  presented  his  plan  to  the  Convention  we 
have  only  a  fragment.   His  son  tells  us  that  "the  speech  of 
which  this  brief  is  given,  occupied  in  the  delivery  between  five 
and  six  hours,  and  was  pronounced  by  a  competent  judge 
[Gouverneur  Morris]  'the  most  able  and  impressive  he  had  ever 
heard.'  In  the  course  of  this  speech  he  read  his  plan  of  govern- 
ment, not  the  propositions  which  are  found  in  the  printed 
journal,  but  'a  full  plan,  so  prepared  that  it  might  have  gone  His  "full 
into  immediate  effect  if  it  had  been  adopted.'  This  plan  con-  plan< 
sisted  of  ten  articles,  each  article  being  divided  into  sec- 
tions." l  Only  after  Hamilton's  finished  plan  as  printed  in  the 
Appendix  has  been  studied  is  it  possible  to  understand  how 
exhaustive  his  preparation  for  the  Convention  really  was. 
Only  Hamilton  and  Pinckney  restated  the  great  invention  as 
finished  systems  of  government.  While  the  plan  of  Hamilton  More  volumin- 
is  more  voluminous,  possibly  more  labored  than  that  of  Pinck- 
ney,  it  was  far  less  practical,  far  less  in  accord  with  the  spirit 
that  animated  the  Convention  as  a  whole.  While  the  Pinckney 
plan  carefully  respected  Webster's  basic  contention  that  the 
new  creation  should  be  a  government  of  limited  powers,  with 
the  residuum  of  power  retained  by  the  states,  the  Hamilton 
plan  offended  the  spirit  of  state  sovereignty  by  proposing  (Art. 
vin,  Sec.  l)  that  "the  Governor  or  President  of  each  state  Why  it 
shall  be  appointed  under  authority  of  the  United  States,  and  offended- 
shall  have  a  right  to  negative  all  laws  about  to  be  passed  in 
the  state  of  which  he  shall  be  Governor  or  President,  subject 
to  such  qualifications  and  regulations  as  the  legislature  of  the 
United  States  shall  prescribe."    Hamilton  "was  praised   by 
everybody,  but  supported  by  none."  2   His  plan,  as  such,  seems 
to  have  made  no  impression  whatever;  it  passed  with  the  occa- 
sion ;  it  was  not  even  referred  to  the  Committee  of  Detail  on 
July  26,  when  the  Pinckney  plan  was  referred. 

Thus  it  appears   that  on   a  single  day  —  June   18  —  the  Only  two 
Convention  virtually  disposed  once  and  forever  of  the  old  Pj^ns  con- 
dream  of  a  Confederation  as  embodied  in  the  New  Jersey  plan 
and  of  the  new  and  extreme  conception  of  a  highly  centralized 
national  system  as  embodied  in   the  Hamilton  plan.     The 

1  J.  C.  Hamilton's  Life  of  Alexander  Hamilton,  ii,  490-491. 
1  Yates  in  Elliot,  i,  431. 


194 


Nineteen 
resolutions 
considered 
seriatim. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


The  legislature 
to  consist  of 
two  branches. 


Convention  really  considered  but  two  plans  —  the  Virginia 
plan  and  the  Pinckney  plan  —  through  which  the  great  inven- 
tion passed,  after  thirteen  sessions,  into  "the  new  system" 
embodied  in  the  nineteen  resolutions  of  June  13.  When  on 
the  1 9th,  King  moved  that  the  Committee  of  the  Whole  rise 
and  report  that  they  do  not  agree  to  the  propositions  of 
Paterson,  it  was  carried,  thus  leaving  the  nineteen  resolutions 
for  consideration,  seriatim,  in  the  Convention  as  distinguished 
from  the  Committee  of  the  Whole.  On  that  day  it  was  that 
Hamilton  said:  "  I  did  not  intend  yesterday  a  total  extinguish- 
ment of  state  governments;  but  that  a  national  government 
must  have  indefinite  sovereignty ;  for  if  it  were  limited  at  all  the 
rivalship  of  the  states  would  gradually  subvert  it.  The  states 
must  retain  subordinate  jurisdictions." l  While  the  states  as 
a  whole  spurned  that  suggestion,  the  smaller  ones  were  still 
firmly  united  in  the  just  resolve  to  preserve  their  autonomy  by 
securing  an  equal  vote  in  at  least  one  branch  of  the  national 
legislature.  If  the  contrary  contention  had  not  been  per- 
severed in  by  the  larger  states,  the  bitterest  of  all  conflicts 
would  have  been  avoided,  and  the  time  occupied  by  the  pro- 
ceedings shortened  certainly  one  third.  As  a  preliminary  to 
that  conflict  came  the  suggestion  of  Martin,  who  said  "he  con- 
sidered that  the  separation  from  Great  Britain  placed  the  thir- 
teen states  in  a  state  of  nature  toward  each  other."  To  which 
Wilson  replied  that  as  he  read  the  Declaration  of  Independ- 
ence the  colonies  "were  independent,  not  individually  but 
unitedly,  and  that  they  were  confederated,  as  they  were  inde- 
pendent states."  When  the  motion  came  from  the  smaller 
states  that  the  word  "national"  should  be  stricken  out  of  the 
first  resolution,  it  was  surrendered  without  a  struggle,  the  house 
then  passing  to  the  second,  which  provided  that  the  legislature 
should  consist  of  two  branches,  a  matter  finally  settled  by  six 
national  states  reinforced  by  Connecticut  on  June  21.  By 
that  time  the  country  seems  to  have  accepted  as  a  finality 
Webster's  suggestion  that  the  new  federal  legislature  should 
consist  of  two  branches  instead  of  one.  The  difficulty  that 
remained  was  in  the  application  of  that  idea  to  a  federal  state 
in  the  absence  of  any  precedent  in  history  to  guide  or  suggest 
the  method  of  it.  Difficult  as  that  task  certainly  would  have 
1  Madison  Papers,  11,905;  Elliot,  212. 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  195 

been  under  any  circumstances,  it  was  complicated  here  not  only 
by  the  intense  jealousy  existing  between  the  smaller  and  larger 
states,  but  also  by  the  existence  of  African  slavery  that  intruded 
itself  into  every  basis  upon  which  representation  could  be  ap- 
portioned. The  larger  states  strenuously  insisted  upon  repre- 
sentation in  both  branches  of  the  legislature  based  entirely 
upon  population,  —  the  smaller  were  immovable  in  their  de- 
mand for  equality  as  states  in  at  least  one  of  them. 

On  June  25,  Wilson  in  stating  the  case  for  the  larger  states 
said :  "When  I  consider  the  amazing  extent  of  country,  the  im-  Claim  of 
mense  population  which  is  to  fill  it,  the  influence  which  the  [tated8?*68 
government  we  are  to  form  will  have,  not  only  on  the  present  Wilson; 
generation  of  our  people  and  their  multiplied  posterity,  but 
on  the  whole  globe,  I  am  lost  in  the  magnitude  of  the  object. 
We  are  laying  the  foundations  of  a  building  in  which  millions 
are  interested,  and  which  is  to  last  for  ages.  In  laying  one  stone 
amiss,  we  may  injure  the  superstructure;  and  what  will  be  the 
consequence  if  the  corner-stone  should  be  loosely  placed?  A 
citizen  of  America  is  a  citizen  of  the  general  government,  and 
is  a  citizen  of  the  particular  state  in  which  he  may  reside. 
The  general  government  is  meant  for  them  in  the  first  capac- 
ity; the  state  governments  in  the  second.  Both  governments 
are  derived  from  the  people,  both  meant  for  the  people;  both, 
therefore,  ought  to  be  regulated  on  the  same  principles.  In 
forming  the  general  government,  we  must  forget  our  local 
habits  and  attachments,  lay  aside  our  state  connections,  and 
act  for  the  general  good  of  the  whole.  The  general  govern- 
ment is  not  an  assemblage  of  states,  but  of  individuals,  for 
certain  political  purposes;  it  is  not  meant  for  the  states,  but 
for  the  individuals  composing  them ;  the  individuals,  therefore, 
not  the  states,  ought  to  be  represented  in  it." 1  Ellsworth  in-  that  of  small 
stantly  "urged  the  necessity  of  maintaining  the  existence  and  worth.  y 
agency  of  the  states.  Without  their  cooperation  it  would  be  im- 
possible to  support  a  republican  government  over  so  vast  an  ex- 
tent of  country.  An  army  could  scarcely  render  it  practicable." 
It  was  on  that  day  determined  by  a  vote  of  nine  to  two  "that 
the  members  of  the  second  branch  be  chosen  by  the  individual 
legislatures."  Virginia  and  Pennsylvania  dissented,  because 
they  looked  upon  that  method  of  choice  as  the  stepping-stone  to 
1  Madison  Papers,  ii,  956-957;  Elliot,  239;  Yates  in  Elliot,  i,  445,  446. 


196 


THE  AMERICAN  CONSTITUTION 


[Cn. 


A  crisis 
reached  on 
June  28. 


, 


Madison  adds 
fuel  to  the 
flame. 


The  Connec- 
ticut compro- 
mise. 


an  equal  representation.  Not  until  the  27th  was  the  irrepress- 
ible conflict  opened  by  Rutledge,  who  moved  that  the  rules  of 
suffrage  in  the  two  branches  of  the  national  legislature  should 
then  be  considered.  During  the  fierce  contest  between  the 
larger  and  the  smaller  states  that  ensued,  in  which  Madison, 
Wilson,  and  King  championed  the  cause  of  the  former,  while 
Sherman,  Ellsworth,  Lansing,  Paterson,  and  Dickinson  were 
equally  resolute  for  the  latter,  feeling  became  so  intense  that  on 
the  28th,  as  Martin  afterwards  reported,  the  Convention  was 
"on  the  verge  of  dissolution,  scarcely  held  together  by  the 
strength  of  a  hair." l  So  loud  was  the  tempest  that  Franklin, 
in  the  hope  of  restoring  calm,  proposed  before  adjournment 
that  the  proceedings  should  be  opened  every  morning  with 
prayer,  and  Randolph,  in  repeating  that  suggestion,  proposed 
that  a  sermon  be  preached  at  the  request  of  the  Convention 
on  the  4th  of  July.2  On  the  next  day,  after  Johnson  had  con- 
tended that  "in  one  branch  of  the  general  government  the 
people  ought  to  be  represented,  in  the  other  the  states,"  after 
Gorham  had  declared  that  it  was  his  duty  to  "stay  here  as  long 
as  any  other  state  would  remain  with  them,  in  order  to  agree 
on  some  plan  that  could  with  propriety  be  recommended  to  the 
people,"  after  Ellsworth  had  said,  "I  do  not  despair,  I  still 
trust  that  some  good  plan  of  government  will  be  devised  and 
adopted,"  Madison,  undaunted,  added  fresh  fuel  to  the  flame 
by  urging  that  "the  states  never  possessed  the  essential  rights 
of  sovereignty;  these  were  always  vested  in  Congress.  Voting 
as  states  in  Congress  is  no  evidence  of  sovereignty.  The  state 
of  Maryland  votes  by  counties.  Did  this  make  the  counties 
sovereign?  The  states,  at  present,  are  only  great  corporations, 
having  the  power  of  making  by-laws  not  contradictory  to  the 
general  Confederation."  3  At  the  end  of  that  day  the  tension 
was  lessened  by  a  decision,  never  departed  from,  that  the  rule 
of  suffrage  in  the  first  branch  ought  to  bear  proportion  to  the 
population  of  the  several  states.  Then  it  was  that  Ellsworth 
said  that  he  was  not  sorry  that  the  vote  just  passed  had  deter- 
mined against  the  old  rule  in  the  first  branch.  "He  hoped  it 
would  become  a  ground  of  compromise  with  regard  to  the 
second  branch.  We  were  partly  national,  partly  federal.  The 

1  Yates  in  Elliot,  i,  461 ;  Madison 
Papers,  ii,  990. 


1  Elliot,  i,  358. 

2  Madison  Papers,  ii,  985-986. 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  197 

proportional  representation  in  the  first  branch  was  conform- 
able to  the  national  principle,  and  would  secure  the  large  states 
against  the  small.  An  equality  of  voices  was  conformable  to 
the  federal  principle,  and  was  necessary  to  secure  the  small 
states  against  the  large.  He  trusted  that  on  this  middle 
ground  a  compromise  would  take  place."  1  Wilson's  counter- 
blast to  that  noble  attempt  to  solve  the  problem  was  this:  "  If 
the  minority  of  the  people  of  America  refuse  to  coalesce  with 
the  majority  on  just  and  proper  principles;  if  a  separation 
must  take  place,  it  could  never  happen  on  better  grounds.  The 
votes  of  yesterday  against  the  just  principle  of  representation, 
were  as  twenty-two  to  ninety,  of  the  people  of  America.  Tak- 
ing the  opinions  to  be  the  same  on  this  point,  and  he  was  sure, 
if  there  was  any  room  for  change,  it  could  not  be  on  the  side  of 
the  majority,  the  question  will  be,  shall  less  than  one  fourth 
of  the  United  States  withdraw  themselves  from  the  Union,  or 
shall  more  than  three  fourths  renounce  the  inherent,  indisput- 
able and  unalienable  rights  of  men,  in  favor  of  the  artificial 
system  of  states?" 2  Wilson  did  not  then  understand  that  the 
majority  were  on  the  brink  of  a  surrender  to  the  minority.  The 
break  in  the  ranks  of  the  larger  states  began  on  June  30,  when 
Davie  of  North  Carolina  declared  that  he  preferred  the  plan  of  Davie 
Ellsworth  to  the  rule  of  proportional  representation  that  would  °f  N°rth 
in  time  render  the  Senate  too  numerous  a  body.  "He  thought  supports  it. 
that,  in  general,  there  were  extremes  on  both  sides.  We  were 
partly  federal,  partly  national,  in  our  union;  and  he  did  not 
see  why  the  Government  might  not  in  some  respects  operate 
on  the  states,  in  others,  on  the  people."  Then  it  was  that  the 
peacemaker,  Franklin,  said:  "When  a  broad  table  is  to  be 
made,  and  the  edges  of  planks  do  not  fit,  the  artist  takes  a 
little  from  both,  and  makes  a  good  joint.  In  like  manner,  here, 
both  sides  must  part  with  some  of  their  demands,  in  order  that 
they  may  join  in  some  accommodating  proposition."  When 
the  Convention  reassembled  on  July  2,  Cotesworth  Pinckney, 
in  order  to  execute  that  idea,  "proposed  that  a  committee 
consisting  of  a  member  from  each  state  be  appointed  to  devise 
and  report  some  compromise."  3  In  order  to  give  that  com- 

1  Yates  in  Elliot,  i,  464;  Madison          *  "He  liked  better  the  motion  of 

Papers,  ii,  996-997.  Dr.    Franklin    (q.   v.   June   30,    p. 

8  Madison  Papers,  ii,  looo-iooi.        1009).     Some   compromise   seemed 


198 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Compromise 
reported  on 
Julys. 


Concession  as 
to  representa- 
tion of  slaves. 


mittee,  elected  by  ballot,  composed  of  Franklin,  Gerry,  Ells- 
worth, Yates,  Paterson,  Bedford,  Martin,  Mason,  Davie, 
Rutledge,  and  Baldwin,  time  for  deliberation,  and  to  all  an 
opportunity  to  celebrate  the  anniversary  of  independence,  the 
Convention  adjourned  until  July  5.  When  on  that  day  the 
Grand  Committee  declared  that  in  the  first  branch  of  the  First 
Congress  there  should  be  one  member  for  every  forty  thousand 
inhabitants,  counting  all  the  free  and  three  fifths  of  the  rest; 
that  in  the  second  branch  each  state  should  have  an  equal 
vote,1  the  anger  of  the  larger  states  found  vent  through 
Gouverneur  Morris,  who  cried  out:  "State  attachments  and 
state  importance  have  been  the  bane  of  this  country.  We  can 
not  annihilate  but  we  may  perhaps  take  out  the  teeth  of  the 
serpents." 2  That  hope  was  in  vain;  with  teeth  undrawn  "the 
serpents"  held  on  to  the  fruits  of  the  victory  they  had  won. 

On  the  7th,  that  part  of  the  report  allowing  each  state  an 
equal  vote  in  the  Senate  was  retained ;  on  the  loth,  the  commit- 
tee of  one  from  each  state  on  the  ratio  of  representation  in  the 
popular  branch  parceled  out  thirty-five  members  to  the  North, 
and  thirty  to  the  South  out  of  the  sixty-five  assigned  to  that 
branch ;  on  the  nth,  the  First  Congress  under  the  new  Constitu- 
tion was  required  to  provide  for  a  census.  On  that  day  it  was 
that  Randolph  agreed  to  the  amendment  that  proceeded  from 
North  Carolina  embodying  the  final  concession  on  the  represen- 
tation of  slaves,  the  permanent  basis  being  the  free  inhabitants 
and  three  fifths  of  all  others.3  It  is  hard  not  to  be  touched 
by  Bancroft's  declaration  that  when  the  Convention  adjourned 
on  that  day  "Virginia  with  a  united  delegation  had  her  hand 
on  the  helm,  while  North  Carolina  kept  watch  at  her  side."4 

Next  day  Gouverneur  Morris  proposed  that  taxation  should 
be  proportioned  to  representation  in  such  a  way  as  to  ex- 
tend it  to  every  branch  of  the  revenue.  When  the  dangers  of 
that  proposal  were  pointed  out,  the  mover  limited  it  to  direct 


to  be  necessary,  the  states  being 
exactly  divided  on  the  question  for 
an  equality  of  votes  in  the  second 
branch."  Madison  Papers,  ii,  1017. 
1  In  consideration  of  that  conces- 
sion to  the  smaller  states,  it  was 
determined  that  the  first  branch 
should  possess  the  sole  power  of  orig- 


inating taxes  and  appropriations. 

8  Madison  Papers,  ii,  1030. 

8  Madison  Papers,  ii,  1066;  El- 
liot, 295.  Butler  and  Cotesworth 
Pinckney  instantly  demanded  that 
the  blacks  should  be  counted  equal- 
ly with  the  whites. 

4  Hist,  of  Const.,  ii,  82. 


VII.]      THE  FEDERAL   CONVENTION  AND  ITS   WORK  199 

taxation,  saying  that  "it  would  be  inapplicable  to  indirect 
taxes  on  exports  and  imports  and  consumption."  Thereupon 
the  Convention  agreed  unanimously  that  "direct  taxation  Direct  taxation 
ought  to  be  in  proportion  to  representation."1  Thus  was 
finally  fixed  the  compromise  proportioning  representation  to 
direct  taxation,  and  both  to  the  number  of  free  inhabitants 
and  three  fifths  of  the  rest.2  And  yet  despite  all  that  had  been 
accomplished  the  settlement  as  fixed  by  the  Grand  Committee 
was  not  safe,  —  the  death-grapple  had  yet  to  come.  When  the 
Convention  reassembled  on  Monday  the  i6th  the  question  was 
taken  on  "the  whole  report,  as  amended,  and  including  the 
equality  of  votes  in  the  second  branch."  Four  of  the  six  states 
(Virginia,  Pennsylvania,  South  Carolina,  and  Georgia)  which 
demanded  a  proportional  representation  in  that  branch  still 
stubbornly  refused  to  yield  that  vital  point.  Victory  was  only 
won  by  pledging  Massachusetts  to  neutrality  (Gerry,  Strong,  — 
aye;  King,  Gorham,  —  no),  and  by  the  bold  and  determined 
stand  taken  by  North  Carolina  in  favor  of  justice  to  the  smaller 
states.  In  response  to  the  signal  Davie  had  given  on  June  30, 
North  Carolina  broke  away  at  the  critical  moment  from  her  North  Caro- 
great  associates  and  gave  a  majority  of  one  to  the  smaller 
states.3  When  on  the  iyth  Gouverneur  Morris  attempted  to  states. 
reopen  the  question,  a  failure  to  second  his  motion  was  an  in- 
dication from  the  larger  states  that  they  accepted  the  decision 
of  the  day  before  as  final.  The  last  word  was  not  spoken,  how- 
ever, until  the  23d,  when  the  number  of  Senators  from  each 
state  was  fixed  at  two,  each  to  have  one  vote.4  The  new  Con- 
stitution was  now  made  in  fact  if  not  in  name;  and  it  was  em- 
bodied in  the  twenty-three  resolutions  into  which  the  original 
nineteen  had  grown  since  the  I3th  of  June.  On  the  26th  those  Twenty  thi 
resolutions  were  referred  to  "the  Committee  of  Detail,  and  the  re*oluti°ns 

reierred  to 

Convention  then  unanimously  adjourned  till  Monday,  August  Committee 
6,  that  the  Committee  of  Detail  might  have  time  to  prepare  of  DetaU< 
and  report   the  Constitution."  5    That  committee  was  com- 

1  Madison  Papers,  ii,  1081;  Elliot,  4  Madison  Papers,  ii,   1186;   El- 
302.  Hot,  357. 

2  Even    Georgia    approved,  and  6  Madison  Papers,  ii,  1220.    For 
South  Carolina  divided  her  vote.  the  text  of  the  twenty-three  resolu- 

8  Connecticut,  New  Jersey,  Dela-      tions  referred  to  the  Committee  of 
ware,  Maryland,  North  Carolina,  —      Detail,  see  Appendix  XVI. 
aye,  5.    Madison  Papers,  ii,  1107; 
Elliot,  316. 


iree 


200  THE  AMERICAN  CONSTITUTION  [Cn. 

posed  of  Wilson,  Ellsworth,  Gorham,  Randolph,  and  Rutledge, 
of  whom  the  last  was  chairman;  and  to  it  were  referred,  along 
with  the  resolutions,  the  Pinckney  plan  and  the  New  Jersey 
plan.  Hamilton's  plan  was  not  referred.1  On  July  10  he  had 
been  deserted  by  Yates  and  Lansing,  dominated  as  they  were 
by  the  factious  selfishness  of  Clinton,  who  had  openly  declared 
that  no  good  was  to  be  expected  from  the  deliberations  at 
Philadelphia ;  that  the  Confederation  might  still  be  found  ade- 
quate to  all  the  purposes  of  the  Union.2  Thus  left  alone,  with- 
out a  vote,  Hamilton  took  but  little  part  in  the  subsequent 
proceedings,  whose  results  he  was  so  brilliantly  to  defend  in  the 
pages  of  "The  Federalist." 

John  As  the  Committee  of  Detail  was  armed  with  such  large 

chairman'.  constructive  powers  as  to  permit  it  to  evolve  a  finished  con- 
stitution out  of  such  data  as  it  might  collect  even  beyond 
the  twenty-three  resolutions  and  the  Pinckney  plan,  it  is  not 
strange  that  the  Virginia  jurist,  Randolph,  and  the  South 
Carolina  jurist,  Rutledge,  should  have  been  appointed  as 
special  guardians  of  the  contributions  made  by  their  respective 
states.  Rutledge,  who  was  nearly  twenty  years  older  than 
Charles  Pinckney,  was  the  foremost  statesman  and  jurist  of  his 
time  south  of  Virginia.  Born  at  Charleston,  of  Scotch-Irish 
ancestry,  he  was  sent,  after  careful  private  instruction  at  home, 
to  study  law  in  the  Temple  at  London.  In  1765  he  began  his 
national  career  in  the  Stamp  Act  Congress  of  1765,  and  in  1774 
he  became  eminent  as  a  member  of  the  First  Continental  Con- 
A great  gress,  Patrick  Henry  declaring  him  to  be  "by  far  the  greatest 

orator  "  in  that  body.  In  1776  he  was  a  member  of  the  Board  of 
War,  soon  taking  an  active  part  in  the  field  as  captain  of  artil- 
lery. After  the  war  he  returned  to  his  home  and  served  in  the 
legislature.  He  is  said  to  have  been  so  hopeful  and  resourceful 
amid  the  gravest  trials  that  timidity  and  wavering  disap- 
peared before  him.  Such  were  the  antecedents,  such  the  char- 
acter and  attainments  of  the  Chairman  of  the  Committee  of 
Detail,  who  certainly  must  have  regarded  with  respect,  prob- 
ably with  special  pride  and  interest,  the  finished  "system" 
of  government  contributed  by  his  brilliant  and  youthful  com- 
patriot. There  is  no  reason  to  believe  that  Randolph  took  any 

1  Madison  Papers,  ii,  1197,  1220-1226. 

2  Penn.  Packet,  July  26,  1787. 


VII.]      THE  FEDERAL   CONVENTION  AND  ITS  WORK  2OI 

less  interest  in  the  contribution  of  Madison.  Against  the  two 

Southern  members,  Rutledge  and  Randolph,  stood  the  two 

Northern  members,  Wilson  and  Gorham,  while  as  an  arbi- 

trating force  between  the  two  stood  Ellsworth  of  Connecticut,  Ellsworth  as 

who  had  just  contributed  so  much  to  the  success  of  the  famous  arbltrator- 

compromise  that  had  saved  the  Convention  from  dissolution. 

In  the  absence  of  any  record  or  personal  narrative  of  their  ten 

days  of  deliberation  there  has  been,  until  very  recently,  practi- 

cally nothing  to  guide  us  as  to  the  manner  in  which  their  de- 

licate and  difficult  functions  were  performed.    As  a  matter  of 

course  their  primary  duty  was  to  elaborate  the  twenty-three 

resolutions  into  a  constitution;  and  we  know  from  the  result 

that  they  actually  turned  each  resolution  into  an  article,  many 

of  which  were  subdivided  into  sections  as  receptacles  for  the 

added  details.    From  what  source  did  these  added  details 

come?   Certainly  not  from  the  Virginia  plan,  which  contained 

none.    As  stated  heretofore,  the  Virginia  Resolutions  only  set 

forth  the  basis  upon  which  a  constitution  might  be  constructed, 

—  in  the  words  of  Judge  Nott  they  only  "  brought  before  the 

Convention  questions  for  abstract  discussion  and  bases  on 

which  to  rest  principles  of  government."    As  such  they  had 

been  exhausted  already;  the  Committee  of  Detail,  able  as  it 

was,  could  not  draw  from  an  empty  well.    The  most  likely 

source  from  which  details  could  be  drawn  was  the  Pinckney  importance  of 


"system,"  whose  sixteen  articles  occupy  eleven  pages  of  the  P 
"  Madison  Papers."  If  we  have  there  a  substantially  true  copy  of 
the  original  —  and  who  will  be  partisan  enough  to  doubt  it 
now  —  a  mere  comparison  of  it  with  the  report  of  the  Commit- 
tee of  Detail  puts  beyond  all  question  Pinckney's  marked 
influence  in  directing  the  Committee's  work.  We  have  every 
reason  to  believe  that  all  questions  that  came  before  it  were 
probed  to  the  bottom  ;  that  the  state  constitutions  were  looked 
to  as  the  best  sources  for  approved  expressions  and  long-tried 
formulas.  As  an  illustration  of  the  manner  in  which  Randolph 
worked,  special  value  should  be  attached  to  the  reprint  in  fac- 
simile recently  made  by  a  well-known  specialist  of  a  tentative 
draft  of  a  constitution  mainly  in  the  handwriting  of  Randolph  Randolph's 
with  parts  written  in  by  Rutledge,  who  revised  it  no  doubt  at 
the  time.  The  internal  evidence  justifies  every  conclusion  in 
which  Mr.  Meigs  has  indulged  in  regard  to  the  character  of  this 


202 


THE  AMERICAN  CONSTITUTION 


[CH. 


Professor 

Jameson's 

discovery. 


Final  draft 
by  Wilson. 


paper,  and  also  as  to  the  probable  time  of  its  production.  No 
possible  difficulty  should  arise  "from  the  fact  that  the  draft 
covers  a  good  many  points  which  are  not  included  in  the  resolu- 
tions referred,  but  a  very  little  consideration  will  show  that 
this  is  only  what  ought  to  be  expected.  The  resolutions  were  by 
no  means  supposed  to  include  the  whole  of  the  proposed  Con- 
stitution, and  the  Committee  of  Detail  was  appointed  for  the 
very  purpose  of  sketching  the  instrument  at  length,  and  filling 
in  the  details  which  were  required  by  the  general  outline  of  the 
government  contained  in  the  resolutions."  l  While  gathering 
such  details,  largely  no  doubt  from  the  Pinckney  "system," 
Rutledge  and  Randolph  naturally  worked  together,  and  the 
paper  in  question  is  certainly  one  of  the  charts  by  which  they 
were  guided.  But  more  conclusive  still  are  the  evidences  of 
the  importance  of  the  Pinckney  plan  to  the  work  of  the  Com- 
mittee very  recently  drawn  from  two  papers  found  among  the 
Wilson  manuscripts  in  the  Library  of  the  Historical  Society  of 
Pennsylvania  to  which  brief  reference  has  been  made  already.2 
The  first  paper,  which  is  in  Wilson's  handwriting,  was  dis- 
covered by  Professor  Jameson  and  published  by  him  in  the 
"Annual  Report  of  the  Historical  Association,  1902"  (vol.  I, 
p.  151).  That  paper,  containing  the  preamble  of  the  Pinckney 
draft,  and  consequently  of  the  draft  of  the  Committee,  is  fol- 
lowed by  the  first  three  articles  of  the  Committee's  draft,  with 
some  slight  variations  of  language;  and  then,  under  the  caption 
of  what  should  be  Article  iv,  come  twenty-nine  paragraphs  con- 
taining provisions  closely  agreeing  with  provisions  in  the  Com- 
mittee's draft,  but  incoherent  in  their  order.  The  second  sheet 
is  missing,  and  the  third  contains  various  provisions  following 
closely  the  Seventeenth,  Eighteenth,  Nineteenth,  Twentieth, 
and  Twenty-first  Resolutions.  Near  the  close  is  the  provision  re- 
lating to  the  veto  power  taken  from  the  Constitution  of  Massa- 
chusetts. The  second  paper,  likewise  discovered  by  Professor 
Jameson,  embodies  a  final  draft  by  Wilson,  evidently  prepared 
for  the  consideration  of  other  members  of  the  Committee,  as 
the  first  seems  to  have  been  prepared  for  his  personal  use.  It  is 
written  on  large  foolscap  in  what  is  called  double  columns,  — 
half  of  each  page  being  left  blank  for  the  comments  and  sug- 

1  Meigs,  The  Growth  of  the  Constitution,  321.  See  also  preface. 
8  See  above,  p.  35. 


VII.]      THE  FEDERAL   CONVENTION  AND  ITS  WORK  203 

gestions  of  others.  This  final  draft  in  the  clear,  legible,  almost 
feminine  hand  of  Wilson,  with  scarcely  a  clerical  error  before 
the  work  of  revision  began,  is  scarred  and  slashed  by  forty- three 
amendments  scrawled  upon  it  in  the  bold,  slovenly,  and  illeg- 
ible writing  of  Rutledge.  This  final  draft,  unlike  the  first,  is 
divided  into  articles,  but  unlike  the  Committee's,  is  not  sub- 
divided into  sections.  Thus  it  appears  that  Rutledge  gave 
probably  more  attention  to  the  Wilson  than  to  the  Randolph 
draft,  as  he  wrote  many  more  amendments  on  its  margin. 
There  is  nothing  whatever  to  show  that  either  Ellsworth  or 
Gorham,  who  were  not  constructive  in  the  Convention,  ever 
attempted  to  draft  a  constitution ;  everything  in  the  Commit- 
tee's report  is  traceable  to  Pinckney,  Rutledge,  Wilson,  and 
Randolph;  they  were  its  authors.  Judge  Nott  says  with  con-  Judge Nott's 
vincing  force  that  "there  are  three  important  articles  in  c 
Wilson's  draught  which  are  not  Wilson's.  These  appear  on  the 
margin  in  the  handwriting  of  Rutledge  and  answer  to  Articles 
xiv,  xv,  and  xvi  of  the  Committee's  draught.  As  they 
are  in  almost  the  precise  language  of  Pinckney 's  Articles  xn 
and  xin,  the  much-repeated  question  again  arises,  did  Rut- 
ledge  take  them  from  the  Pinckney  draught ;  were  they  then  in 
the  Pinckney  draught  to  be  taken;  or  did  Pinckney  abstract 
them  from  the  Committee's  draught?  The  question  is  easily 
and  decisively  answered:  these  articles  are  described  in  the  '06- 
servations ' ;  Pinckney' s  title  to  them  cannot  be  questioned;  Wilson 
and  Rutledge  had  his  draught  before  them,  and  used  it,  when  Rut- 
ledge  wrote  those  articles  upon  the  margin'1  l  Pinckney's  tri- 
umphant vindication  by  means  of  documents  so  imperfect,  so  What  Pinck- 
circumstantial  in  many  particulars,  should  admonish  all  special 
students  of  the  subject  that  it  is  useless  to  fight  longer  against 
the  overshadowing  facts  as  to  the  authorship  of  "the  new  sys- 
tem" as  a  whole  embodied  in  the  document  of  February  16, 
1783,  —  one  of  whose  greatest  marvels  is  its  completeness. 

When  on  August  6,  "Mr.  Rutledge  delivered  in  the  report  Report  of 
of  the  Committee  of  Detail,"  each  member  of  the  Convention  ^D^ 
received  a  copy  of  its  draft  of  a  constitution,  printed  on  broad-  August  6. 
sides  in  large  type,  with  wide  margins  and  spaces  for  minutes 
or  amendments.    On  the  7th,  the  work  of  revision  began  in 
earnest,  and  from  that  time  until  September  10  the  Conven- 
1  The  Mystery  of  the  Pinckney  Draught,  p.  182. 


204 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Special 
committees. 


Choice  of  an 
executive. 


A  single  per- 
son to  be 
chosen. 


tion  subjected  the  draft  to  a  minute  examination,  clause  by 
clause.  During  that  time,  as  the  members  grew  weary  of  the 
work,  more  and  more  subjects  were  referred  to  special  commit- 
tees, until  finally  the  postponed  and  unfinished  parts  of  the 
Constitution  were  referred  to  a  committee  constituted  for  that 
purpose.  From  these  committees  came  many  important  pro- 
visions, notably  from  the  committee  last  named  those  relating 
to  the  method  of  electing  a  President.1  How  to  regulate  the 
choice  of  a  republican  chief  magistrate  was  a  difficult  problem, 
as  neither  the  Greek  nor  Low-Dutch  leagues  had  had  a  separ- 
ate executive  branch,  and  as  the  elective  monarchies  of  the 
Papal  States,  of  Poland,  and  of  Germany  furnished  no  helpful 
precedents.  The  Committee  of  Detail  simply  reported  that 
"the  executive  power  of  the  United  States  shall  be  vested  in 
a  single  person.  His  style  shall  be  'The  President  of  the 
United  States  of  America,'  and  his  title  shall  be,  'His  Excel- 
lency.' He  shall  be  elected  by  ballot  by  the  legislature," 2  - 
a  substantial  reproduction  of  Webster's  suggestion  that  "the 
supreme  executive  authority"  should  be  vested  in  a  Council  of 
State,  "one  of  which  to  be  appointed  President  by  Congress." 
The  Virginia  plan  simply  provided  in  the  same  way  that  the 
President  should  "be  chosen  by  the  national  legislature  for  the 
term  of  ";and  the  Pinckney  plan  that  "he  shall  be 

elected  for  years;  and  shall  be  reeligible."    Not  until 

near  the  close  of  the  Convention  was  the  method  of  his  election 
determined.  As  early  as  July  26,  after  Mason  had  restated 
the  seven  plans  proposed  of  electing  the  chief  magistrate,  the 
plan  he  considered  best  was  accepted ;  it  was  then  agreed  that 
a  single  person  should  be  chosen  by  the  national  legislature  for 
the  term  of  seven  years;  and  that  he  should  be  ineligible  a 
second  time.3  Two  days  before,  Gouverneur  Morris  declared: 
"Of  all  possible  modes  of  appointing  the  Executive, an  election 
by  the  people  is  best;  and  election  by  the  legislature  is  worst." 
When  on  August  24  that  part  of  the  report  of  the  Committee 


1  On  September  4,  the  Committee 
on  Unfinished  Portions,  of  which 
Gouverneur  Morris  was  a  member, 
made  a  report  working  an  entire 
change  in  the  method  of  electing  a 
President  as  previously  outlined.  See 
Madison  Papers,  iii,  1486  sq. 


8  It  also  provided  that  "  he  shall 
hold  his  office  during  the  term  of 
seven  years;  but  shall  not  be  elected 
a  second  time." 

*  Madison  Papers,  ii,  1207;  Elliot, 
368. 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  205 

of  Detail  relating  to  the  Executive  came  before  the  Convention, 
he  revived  the  plan  of  choosing  the  President  by  electors,  and 
it  received  the  support  of  five  states  including  his  own.1  Opin- 
ion in  favor  of  that  plan  then  ripened  so  fast  that  on  August 
31,  the  mode  of  choosing  the  President,  his  powers,  and  the 
question  of  his  reeligibility  were  referred  to  the  Grand  Commit- 
tee elected  on  that  day  for  the  consideration  of  postponed  and 
unfinished  business.2  On  September  4,  after  full  considera-  * 
tion,  the  report  was  in  favor  of  a  term  of  four  years;  the  elec- 
tion was  vested  in  electors  to  be  appointed  in  each  state  as  its 
legislature  might  direct;  and  such  electors  were  to  be  equal  to 
the  whole  number  of  its  Senators  and  Representatives  in  Con- 
gress.3 Thus  the  electoral  colleges  collectively  were  to  be  the  Electoral  col- 
exact  counterpart  of  the  joint  convention  of  the  national  legis-  leges  de 
lature.  In  the  same  report  it  was  provided  that  "in  every  case, 
after  the  choice  of  the  President,  the  person  having  the  great- 
est number  of  votes  shall  be  Vice-President ;  but  if  there  shall 
remain  two  or  more  who  have  equal  votes,  the  Senate  shall 
choose  from  them  the  Vice-President."  In  order  to  make  an  Vice-President 
excuse  for  his  existence  the  Convention  provided  that  he  should 
be  President  of  the  Senate,  despite  Mason's  objection  that 
"that  is  an  encroachment  on  the  Senate's  rights;  and,  more- 
over, it  mixes  up  too  much  the  legislative  and  the  executive."  4 
In  order  to  master  the  details  of  the  remainder  of  the  gravely 
important  and  highly  interesting  work  done  between  August 
7  and  September  10,  the  student  must  plough  his  way,  page 
by  page,  through  the  record  itself,  that  ends  on  the  day  last 
named  with  Randolph's  despairing  question:  "Was  he  to  pro- 
mote the  establishment  of  a  plan,  which  he  verily  believed 
would  end  in  tyranny?"6 

On  September  8,  a  committee  was  appointed  "to  revise  Committee  on 
the  style  of  and  arrange  the  articles  which  had  been  agreed  to 
by  the  House."  That  committee,  chosen  by  ballot,  consisted 
of   Johnson,  Hamilton,    Gouverneur   Morris,  Madison,  and 
King.6  On  the  I2th,  Johnson  "reported  a  digest  of  the  plan,  of 

1  Madison  Papers,  iii,  1421.  ler,  and  Baldwin.    Madison  Papers, 

8  The  eleven,  elected  by  ballot,      iii,  1478. 

were  Oilman,  King,  Sherman,  Brear-          *  Ibid.  1485-1488;  Elliot,  507. 
ley,  Gouverneur  Morris,  Dickinson,  4  Ibid.  1517. 

Carroll,  Madison,  Williamson,  But-          B  Ibid.  1541. 

6  Ibid.  1532. 


206 


THE  AMERICAN  CONSTITUTION 


[CH. 


The  last  day, 
September    17. 
Franklin's 
appeal. 


Washington 
addresses 
Convention 
for  first  time. 


which  printed  copies  were  ordered  to  be  furnished  to  the  mem- 
bers. He  also  reported  a  letter  to  accompany  the  plan  to  Con- 
gress." l  Whatever  opportunity  for  improvement  remained, 
after  the  critical  review  the  Convention  had  made  of  every 
clause  of  every  section,  was  most  skillfully  utilized  by  Gouv- 
erneur  Morris,2  who  undoubtedly  cast  the  Constitution  in  its 
final  form  not  only  by  rearranging  its  parts,  but  also  by  remov- 
ing as  far  as  possible  all  redundant  and  equivocal  expressions. 
While  the  report  of  the  Committee  on  Style  was  pending,  quite 
a  number  of  minor  amendments  were  made,  —  not  until  the 
1 5th  was  the  Constitution  ordered  to  be  engrossed.3  , 

On  the  very  last  day,  Monday  the  1 7th,  after  the  engrossed  in- 
strument had  been  read,  Franklin,  in  the  hope  of  winning  over 
the  three  dissidents,  said:  "Mr.  President,  I  confess  that  there 
are  several  parts  of  this  Constitution  of  which  I  do  not  at  pre- 
sent approve,  but  I  am  not  sure  I  shall  never  approve  them.  It 
astonishes  me  to  find  this  system  approaching  so  near  to  perfec- 
tion as  it  does.  On  the  whole,  sir,  I  cannot  help  expressing  a 
wish  that  every  member  of  the  Convention,  who  may  still  have 
objections  to  it,  would  with  me  on  this  account  doubt  a  little 
of  his  own  infallibility,  and,  to  manifest  our  unanimity,  put  his 
name  to  this  instrument."  In  moving  that  it  be  signed  by  the 
members,  he  made  a  final  and  ineffectual  effort  to  win  over  the 
obdurate  Randolph,  Mason,  and  Gerry,  by  offering  the  simple 
testimonial  that  the  Constitution  had  received  "the  unani- 
mous consent  of  the  states  present."  Before  the  question  was 
put,  a  proposal  was  made  by  Gorham,  upon  an  intimation  from 
Washington,  to  render  the  House  of  Representatives  a  more 
popular  body  by  allowing  one  member  for  every  thirty  thou- 
sand inhabitants.  Washington  deemed  this  matter  so  import- 
ant that,  for  the  first  time,  he  addressed  the  Convention  and 
urged  the  passage  of  the  amendment.  In  putting  the  question 
he  said:  "The  smallness  of  the  number  of  Representatives  has 
been  considered  by  many  members  as  insufficient  security  for  the 
rights  and  interests  of  the  people ;  and  to  myself  has  always  ap- 
peared exceptionable ;  late  as  is  the  moment,  it  will  give  me  much 


1  Madison  Papers,  iii,  1543. 

*  See  G.  Morris  to  T.  Pickering, 
Dec.  22,  1814,  in  Life,  by  Sparks,  iii, 
323- 


Madison  Papers,  ii,  1595;  Elliot, 


553- 


VII.]      THE  FEDERAL   CONVENTION  AND  ITS  WORK  207 

satisfaction  to  see  the  amendment  adopted  unanimously."  1 
And  so  it  was.  Having  thus  spoken  his  first  and  the  Con- 
vention's last  word,  Washington  —  after  its  journals  and 
papers  had  been  confided  to  his  care,  "subject  to  the  order  of 
Congress,  if  ever  formed  under  the  Constitution,"  and  after  the 
delegations  had  come  forward  in  geographical  order  and  affixed 
their  signatures  to  it  —  early  in  the  evening  retired  "to  medi- 
tate on  the  momentous  work  which  had  been  executed."  2 

On  the  20 th  of  September,  Washington's  letter  as  President  Result  re- 
of  the  Convention,  together  with  its  resolutions  and  the  full  c^Js 
text  of  the  new  Constitution,  were  laid  before  Congress ;  and  September  20. 
despite  Richard  Henry  Lee's  contention  that  that  body  had  no 
power  to  assist  in  creating  a  "new  Confederacy  of  nine,"  3  it 
unanimously  resolved,  on  the  28th,  after  obliterating  every 
record  of  opposition,  that  the  report,  with  the  letter  and  resolu- 
tions accompanying  the  same,  be  sent  to  the  several  legisla- 
tures, in  order  to  be  submitted  to  a  convention  of  delegates  to 
be  chosen  in  each  state  by  the  people  thereof  in  conformity 
with  the  resolves  of  the  Convention.4  As  Article  vi  provided 
that  "the  ratification  of  the  Conventions  of  nine  states  shall  be 
sufficient  for  the  establishment  of  this  Constitution  between 
the  states  so  ratifying  the  same,"  the  fate  of  the  new  system, 
with  its  power  to  regulate  commerce  in  the  interest  of  all,  now  Opposition  to 
depended  upon  the  judgments  to  be  rendered  by  at  least  nine  ™ 
of  them.  By  reason  of  the  existence  of  that  power,  it  was  most 
bitterly  and  stubbornly  opposed  in  the  great  State  of  New 
York,  with  her  splendid  harbor  so  capable  of  a  world- wide 
commerce,  and  with  rivers  flowing  directly  to  the  sea,  to  Dela- 
ware and  Chesapeake  bays,  to  the  Mississippi  and  to  the 
water-course  of  the  St.  Lawrence.  She  could  not  lose  sight  of 
the  fact,  sorely  as  she  needed  an  efficient  government,  that 
more  than  half  of  the  goods  consumed  in  New  Jersey,  Con- 
necticut, Vermont,  and  in  the  western  parts  of  Massachusetts 
were  brought  to  her  harbor  and  paid  impost  for  its  use.6 
Among  the  malcontents  in  Virginia  was  George  Mason,  who  in 
stating  his  objections  said  that  the  capital  crime  in  the  new 

1  Madison  Papers,  ii,  1599,  1560;          4  Journals  of  Congress,  iv,  782. 
Elliot,  555,  556.  6  Cf .  Williamson  to  Iredell,  July  7, 

2  Washington's  diary  for  that  day.      1788.  McRhee's  Iredell,  ii,  227,  228; 
*  Madison  Papers,  ii,  643;  Elliot,      Bancroft,  ii,  339;  232,  297. 

566. 


208 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Negotiations 
between  Jay 
and  Gardoqui, 
1785- 


Delaware  first 
to  ratify, 
December  7, 
1787; 


Pennsylvania 
and  New 
Jersey 
same  month; 


Georgia, 
January, 
1788; 


system  was  the  grant  to  Congress  of  power  to  regulate  com- 
merce by  a  bare  majority  vote.1  For  a  time  from  Virginia, 
with  her  ample  harbors  convenient  to  the  ocean,  proceeded 
the  Southern  opposition  to  the  consolidation  of  the  Union. 
But  the  South  had  been  profoundly  alarmed  when  the  negotia- 
tions between  Jay  and  Gardoqui  threatened,  in  July,  1785,  to 
result  in  an  agreement  by  which  the  United  States  was  to  pay 
to  Spain  as  the  price  of  a  treaty  of  reciprocity  in  commerce  the 
abandonment  of  the  navigation  of  the  Mississippi  for  a  period 
of  twenty-five  or  thirty  years.  "There  is  danger,"  reported 
Otto  to  Vergennes,  "that  the  discussion  may  become  the  germ 
of  the  separation  of  the  Southern  States."  2  That  possible 
alternative  frightened  even  Randolph,  who  wrote  to  the 
Speaker  of  the  House  of  Delegates  of  his  state,  October  10, 
1787:  "Dreadful  as  the  total  dissolution  of  the  Union  is  to  my 
mind,  I  entertain  no  less  horror  at  the  thought  of  partial  con- 
federacies. The  utmost  limit  of  any  partial  confederacy, 
which  Virginia  could  expect  to  form,  would  comprehend  the 
three  Southern  and  her  nearest  Northern  neighbor.  But  they, 
like  ourselves,  are  diminished  in  their  real  force  by  the  mixture 
of  an  unhappy  species  of  population."  3  While  the  jealous 
Titans  thus  halted  between  their  local  self-interests  and  their 
fears,  the  first  step  forward  was  taken  by  loyal  little  Delaware, 
that  ratified  unanimously  December  7,  I787.4  The  moment 
that  an  equality  of  vote  in  the  Senate  was  conceded,  her  one 
element  of  opposition  had  disappeared.  The  lead  thus  taken  by 
"the  Delaware  state"  was  promptly  followed  by  the  conven- 
tion of  the  great  commonwealth  from  which  she  had  sprung. 
On  December  12,  Pennsylvania  ratified  by  a  vote  of  forty- 
six  to  twenty- three ;  and  on  the  i8th  of  the  same  month,  the 
people  of  New  Jersey,  guided  by  such  men  as  Brearley,  Wither- 
spoon,  Neilson,  and  Beatty,  "by  the  unanimous  consent  of  the 
members  present,  agreed  to,  ratified,  and  confirmed  the  pro- 
posed constitution  and  every  part  thereof."  Georgia  opened 
the  new  year  of  1788  with  a  third  unanimous  ratification  on 
January  2,  attended  with  an  expression  of  the  hope  that  "her 


1  George  Mason  to  Washington, 
Oct.  7,  1787.  Sparks,  ix,  267,  268, 
note. 


8  Otto  to  Vergennes,   loth   Sep- 
tember, 1786. 
•  Elliot,  i,  487. 
4  Ibid.,  ii,  497,  499. 


VII.]      THE  FEDERAL   CONVENTION  AND  ITS   WORK  209 

cheerful  assent  would  tend  to  consolidate  the  union"  and  "pro- 
mote the  happiness  of  the  common  country" ; J  and  on  the  9th 
of  the  same  month,  Connecticut  —  after  James  Wadsworth  Connecticut 
had  objected  to  duties  on  imports  as  partial  to  the  Southern  same 
States  —  ratified  by  a  vote  of  one  hundred  and  twenty-eight 
to  only  forty  against.2  The  next  state  to  speak  was  Massachu- 
setts, whose  people  were  divided  almost  equally.  It  was  a  crit- 
ical moment.  "The  decision  of  Massachusetts  either  way," 
wrote  Madison,  "will  involve  the  result  in  New  York,"  and 
a  negative  would  arouse  to  active  resistance  the  majority  in 
Pennsylvania.  Langdon  reported  that  Rhode  Island  and  New 
Hampshire  would  ratify  if  Massachusetts  should  act  favorably. 
Bowed  down  with  debts  and  fresh  from  the  agonies  of  a  sup-  The  struggle  in 
pressed  insurrection,  the  entire  population  of  the  western  Massachusetts- 
counties  that  had  sided  with  Shays  was  bitter  against  the  Con- 
stitution, while  the  larger  centres  and  in  general  the  eastern 
part  of  the  state  favored  it.  Before  Samuel  Adams,  the  helms- 
man of  the  Revolution  at  its  origin,  had  time  to  express  himself, 
his  constituents  of  the  industrial  classes  at  Boston  warned  him 
that  if  the  Constitution  should  be  rejected  "navigation" 
would  languish  and  "skillful  mechanics  be  compelled  to  emi-  Warning  to 
grate,  so  that  any  vote  of  a  delegate  from  Boston  against 
adopting  it  would  be  contrary  to  the  interests,  feelings,  and 
wishes  of  the  tradesmen  of  the  town."  Such  was  the  warning 
given  to  the  typical  home-ruler,  who  was  startled  when  on 
entering  the  new  "building,  he  met  with  a  national  govern- 
ment instead  of  a  federal  union  of  sovereign  states."  Objec- 
tions came  in  many  forms.  The  compromise  touching  the  tax- 
ation and  representation  of  slaves  was  bitterly  assailed ; 3  com- 
plaint was  made  that  there  was  no  religious  test,  that  a  Papist 
or  an  infidel  was  as  eligible  as  a  Christian.  James  Neal  of  Maine 
said  that  he  could  not  favor  "making  merchandise  of  the  bod- 
ies of  men,  and  unless  this  objection  is  removed  I  cannot  put 
my  hand  to  the  Constitution."  And  last  and  most  of  all  it  was 
objected  that  there  was  no  bill  of  rights.  But  the  leaders  of  the 
great  assembly  were  true  to  the  national  cause.  Fisher  Ames,  Fisher  Ames. 

1  Stevens,  History  of  Georgia,  "Slavery  could  not  be  abolished  by 

ii,  387.  A  salute  of  thirteen  guns  act  of  Congress  in  a  moment;  but 

followed  the  ratification.  it  has  received  a  mortal  wound." 

8  Penn.  Packet,  Jan.  24,  1788.  Elliot,  ii,  41,  149. 

8  Dawes    of    Boston     answered: 


210 


THE  AMERICAN  CONSTITUTION 


[CH. 


Hancock. 


Battle  won 
February  6. 


"The  Federal- 
ist," 1788. 


after  earnestly  rebuking  the  importation  of  slaves,  said :  "This 
constitution  is  comparatively  perfect;  no  subsisting  govern- 
ment, no  government  which  I  have  ever  heard  of,  will  bear 
a  comparison  with  it.  The  State  Government  is  a  beautiful 
structure,  situated,  however,  upon  the  naked  beach;  the  Union 
is  the  dike  to  fence  out  the  flood."  l  And  when  the  time  came 
for  the  debate  to  be  closed  by  Stillman,  a  Baptist  minister,  he 
said:  "Cling  to  the  Union  as  the  rock  of  our  salvation,  and 
finish  the  salutary  work  which  hath  begun."  King  had  ex- 
plained already  the  nature  of  the  mighty  transition  that  was 
to  take  place  from  a  league  of  states,  based  on  the  old  quota 
system,  to  a  composite  state  instituted  by  the  people  with  the 
right  to  execute  its  own  laws  directly  on  individuals.2  No  one 
did  more,  however,  to  remove  the  gravest  difficulty  that  de- 
terred Massachusetts,  as  well  as  many  states  that  were  to  fol- 
low her,  than  Hancock,  who,  before  putting  the  question,  said: 
"I  give  my  assent  to  the  Constitution  in  full  confidence  that 
the  amendments  proposed  will  soon  become  a  part  of  the  sys- 
tem. The  people  of  this  commonwealth  will  quietly  acquiesce 
in  the  voice  of  the  majority,  and,  where  they  see  a  want  of  per- 
fection in  the  proposed  form  of  government,  endeavor,  in  a 
constitutional  way,  to  have  it  amended."  3  On  the  basis  of  that 
noble  declaration  the  battle  was  won  on  the  6th,  when  the 
bells  and  the  artillery  announced  the  glad  tidings  after  the 
motion  to  ratify  had  been  carried  by  the  narrow  majority  of 
nineteen  votes  out  of  a  total  of  three  hundred  and  fifty-five.4 
But  with  even  that  narrow  margin  opposition  vanished; 
amidst  mutual  congratulations  all  "smoked  the  calumet  of 
love  and  union." 

Early  in  this  critical  year,  Hamilton,  Madison,  and  Jay  were 
engaged  in  the  publication  of  the  brilliant  expositions  of  the 
new  Constitution  contained  in  "The  Federalist,"  which  sur- 
vives as  a  permanent  contribution  to  the  political  literature 
of  the  world.5  In  a  great  case  Chief  Justice  Marshall  said:  " It 


1  Elliot,  ii,  154-159. 

2  Ibid.,  ii,  54-57. 

1  Ibid.,  ii,  174-176. 

4  187  votes  against  168.  Elliot,  ii, 
181. 

6  "The  undertaking  was  pro- 
posed by  Alexander  Hamilton  to 


James  Madison,  with  a  request  to 
join  him  and  Mr.  Jay  in  carrying  it 
into  effect.."  (Madison  in  a  paper 
entitled  "The  Federalist.")  "It 
was  undertaken  last  fall  by  Jay, 
Hamilton,  and  myself.  The  pro- 
posal came  from  the  two  former." 


VII.]      THE  FEDERAL   CONVENTION  AND  ITS  WORK  211 

is  a  complete  commentary  on  our  Constitution,  and  is  appealed 
to  by  all  parties  in  the  questions  to  which  that  instrument  has 
given  birth."  l 

By  Massachusetts  the  torch  was  passed  on  to  Maryland,  Maryland 
where  Washington's  influence,  supported  by  that  of  Madison, 
on  the  Maryland  side  of  the  Potomac  was  sorely  needed  to 
counteract  the  movements  of  the  anti-federalists  of  Virginia, 
zealous  as  ever  under  the  leadership  of  Richard  Henry  Lee 
and  Patrick  Henry,  who  were  doing  their  utmost  to  bring 
about  the  organization  of  a  Southern  Confederacy.  But 
when  the  convention  met  at  Annapolis,  April  21,  strength- 
ened as  it  was  by  a  letter  of  advice  from  Washington  to 
Thomas  Johnson,2  it  was  found  that  the  plan  of  a  confeder- 
acy of  slaveholding  states  had  not  a  single  supporter.  Despite 
the  ravings  of  Samuel  Chase  and  the  intrigues  of  William 
Paca,  the  malcontents  were  silenced  and  the  Constitution  rati- 
fied on  the  26th,  by  sixty- three  votes  against  eleven,  Paca  vot- 
ing with  the  majority.  Seven  of  the  thirteen  had  now  been 
secured.  In  his  letter  of  congratulation  to  Daniel  of  St.  Thomas 
Jenifer,  of  April  27,  Washington  said :  "Seven  affirmative  with- 
out a  negative  would  almost  convert  the  unerring  sister.  The 
fiat  of  your  convention  will  most  assuredly  raise  the  edifice."  3 
The  time  had  now  arrived  for  the  state  of  Charles  Pinckney, 
the  draftsman  of  the  "system,"  and  of  Rutledge,  the  Chairman 
of  the  Committee  of  Detail,  to  speak.  In  South  Carolina  the  South  Caro- 
anti-federalists  of  Virginia  were  still  intriguing  for  a  Southern  lma>  May  23> 
Confederacy,  while  Washington  and  Madison  were  as  faithful 
as  ever  in  pleading  against  them  for  the  Union.4  Just  before  the 
convention  was  called,  a  notable  scene  occurred  in  the  House  of 
Representatives  when  Charles  Pinckney  graphically  described5  Pinckney 
the  novel  character  of  "the  federal  republic"  which  was  to  f*d  L^ndes 

.     „  in  state  legis- 

operate  directly  on  individuals  and  not  on  states  as  corporate  lature. 
persons.  When  Lowndes,6  the  spokesman  of  the  Virginia  oppo- 
sition, assailed  the  clause  in  the  Constitution  declaring  a  treaty 
properly  ratified  to  be  the  supreme  law  of  the  land,  Cotes- 
Madison  to  Jefferson,  August   IO,          *  April  27,  1788,  MS. 
1788.    See  Ford's  Federalist,  xxiii,          4  Madison  to  Washington,  April 
note.  10,  1788.    Works,  i,  384,  385. 

1  Cohens  t>.  Virginia,    6    Wheat.          6  Elliot,  iv,  253-263. 
264.  6  Ibid.,  iv,  262-265. 

*  April  20,  1788,  MS. 


212 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Convention 
organized 
May  13. 


New  Hamp- 
shire ratified 
June  21. 


worth  Pinckney  condemned  the  reasoning  as  specious,  Rut- 
ledge  adding  that  "every  treaty  is  law  paramount  and  must 
operate,"  not  less  under  the  Confederation  than  under  the  Con- 
stitution.1 The  summit  of  absurdity  was  then  reached  when 
Lowndes,  referring  to  the  Confederation,  said:  "We  are  now 
under  a  most  excellent  constitution  —  a  blessing  from  Heaven, 
that  has  stood  the  test  of  time,  and  given  us  liberty  and  inde- 
pendence ;  yet  we  are  impatient  to  pull  down  that  fabric  which 
we  raised  at  the  expense  of  our  blood."  2  When  the  convention 
was  organized  on  May  I3,3  with  Thomas  Pinckney,  then 
governor,  as  president,  Sumter,  the  leader  of  the  malcontents, 
put  to  the  test  the  strength  of  those  who  desired  to  act  with 
the  Virginia  opposition  by  moving,  on  the  2ist,  for  an  adjourn- 
ment for  five  months.4  After  that  motion  had  been  decisively 
defeated,  the  Constitution  was  ratified  on  the  23d  by  one  hun- 
dred and  forty-nine  votes  against  seventy-three  —  more  than 
two  to  one.5  Five  days  later,  when  the  ninth  state  had  yet  to 
speak,  Washington  wrote  to  Lafayette:  6  "The  plot  thickens 
fast.  A  few  short  weeks  will  determine  the  political  fate  of 
America  for  the  present  generation,  and  probably  produce  no 
small  influence  on  the  happiness  of  society  through  a  long 
succession  of  ages  to  come."  The  "few  short  weeks"  were  to 
be  only  three  in  number.  On  June  21,  New  Hampshire,  which 
had  adjourned  her  convention  to  await  the  action  of  Massa- 
chusetts, followed  her  example,  thus  making  the  ninth  state 
necessary  "for  the  establishment  of  this  Constitution  between 
the  states  so  ratifying  the  same."  The  fact  was  carefully 
inserted  in  the  record  that  the  vote  of  fifty-seven  against  forty- 
six  was  taken  on  Saturday,  June  21,  at  one  o'clock  in  the  after- 
noon, so  as  to  preclude  the  possibility  of  the  honor  of  giving  life 
to  the  new  system  being  claimed  by  any  other  state  ratifying 
at  a  later  hour  of  the  same  day.7  And  here  it  may  not  be  amiss 
to  note  that  among  the  strenuous  opponents  of  the  Con- 
stitution in  New  Hampshire  was  Captain  Ebenezer  Webster, 
the  father  of  one  destined  to  be  its  mighty  expounder  and 
defender. 


1  Elliot,  iv,  267-268. 

8  Ibid.,  iv,  271,  272. 

1  Ibid.,  iv,  318. 

4  Ibid.,  iv,  338. 

6  Ibid.,  iv,  338-340. 


«  May  28,  1788,  MS. 

7  Tobias  Lear  to  Washington, 
June  22, 1788;  Letters  to  Washington, 
iv,  225. 


VII.]      THE  FEDERAL   CONVENTION  AND  ITS  WORK  213 

The  debate  in  the  convention  of  Virginia,  which  assembled  Virginia, 
at  Richmond  on  June  2  under  the  presidency  of  Pendleton,  was 
terminated  on  the  25th  by  Randolph,  who  in  closing  said: 
"The  accession  of  eight  states  reduces  our  deliberations  to  the 
single  question  of  union  or  no  union."  Thus  it  appears  that 
the  deliberations  of  the  great  state  that  had  done  so  much  to 
bring  the  Federal  Convention  into  being  ended  in  ignorance  of 
the  fact  that  the  honor  of  vitalizing  its  work  had  been  seized  by 
New  Hampshire.  Without  the  advantage  that  must  have  fol- 
lowed the  knowledge  of  assured  success,  the  influence  of  Wash- 
ington was  to  be  tested  in  his  stronghold  by  the  eloquence  and 
craft  of  a  coalition  led  by  Patrick  Henry,  Richard  Henry  Lee, 
George  Mason,  John  Tyler,  Zachariah  Johnson,  Benjamin 
Harrison,  and  Grayson,  feebly  supported  by  Monroe.  The 
strength  of  the  opposition  had,  however,  been  seriously  weak- 
ened in  advance  by  South  Carolina's  crushing  blow  to  the  Opposition 
scheme  for  a  Southern  Confederacy,  the  confident  anticipation  weak^ed  by 
of  which  event  prompted  Washington  to  assure  Madison  that  Carolina, 
"the  eloquence  of  eight  affirmatives  for  the  Constitution  ought 
to  cause  even  'the  unerring  sister'  to  hesitate."  1  To  that  vic- 
tory Washington  added  the  conversion  of  Governor  Randolph, 
then  at  the  height  of  his  power  and  popularity.2  Thus  menaced, 
the  malcontents,  following  the  example  of  Massachusetts, 
resolved  to  make  no  test  of  strength  until  the  Constitution  had 
been  discussed  clause  by  clause.  While  even  Richard  Henry- 
Lee  was  inclined  to  be  more  reasonable,  Patrick  Henry,  whose  Patrick  Henry, 
"plans  extended  contingently  even  to  foreign  alliances,"  3  was 
defiant.  His  boast  was  that  "the  other  states  cannot  do  with- 
out Virginia,  and  we  can  dictate  to  them  what  terms  we  please." 
In  that  temper  he  forced  the  fight,  declaring  that  "the  Con- 
stitution is  the  severance  of  the  Confederacy.  Its  language, 
'We  the  people/  is  the  institution  of  one  great  consolidated 
national  government  of  the  people  of  all  the  states,  instead  of 
a  government  by  compact  with  the  states  for  its  agents.  The 
people  gave  the  Convention  no  power  to  use  their  name."  4 
After  George  Mason  had  supported  him  by  saying  that  "the  George  Mason. 

1  Washington  to  Madison,  May  2,  8  Carrington  to  Madison,  Jan.  18, 
1788,  MS.  1788,  MS. 

2  See    Washington    to    Edmund  4  Elliot,  iii,  23. 
Randolph,  Jan.  8,  1788.  Sparks,  ix, 

297. 


214 


THE  AMERICAN  CONSTITUTION 


[CH. 


power  of  laying  direct  taxes  changed  the  Confederation.  The 
general  government  being  paramount  and  more  powerful,  the 
state  governments  must  give  way  to  it ;  and  a  general  consol- 
idated government  is  one  of  the  worst  curses  that  can  befall 

Pendleton.  a  nation,"  1  Pendleton  retorted  that  "there  is  no  quarrel  be- 
tween government  and  liberty;  the  former  is  the  shield  and 
protector  of  the  latter.  The  expression  'We  the  people'  is  a 
common  one,  and  with  me  it  is  a  favorite.  Who  but  the  people 
can  delegate  powers,  or  have  a  right  to  form  a  government?"  2 

Randolph.  And  to  that  Randolph  added  that  "the  question  is  now  be- 
tween union  and  no  union,  and  I  would  sooner  lop  off  my  right 
arm  than  consent  to  a  dissolution  of  the  union."  3  When 
Henry  in  eulogizing  the  English  Constitution  said :  "  In  the  Brit- 
ish Government  the  sword  and  purse  are  not  united  in  the  same 
hands,  in  this  system  they  are.  Does  not  infinite  security 

Madison.  result  from  a  separation? "  4  Madison  answered :  "There  never 
was,  there  never  will  be,  an  efficient  government  in  which  both 
the  sword  and  purse  are  not  vested,  though  they  may  not  be 
given  to  the  same  member  of  the  government.  The  sword  is  in 
the  hands  of  the  British  King;  the  purse  is  in  the  hands  of  the 
Parliament.  It  is  so  in  America,  as  far  as  any  analogy  can 
exist."  6  It  was,  however,  against  the  federal  judicial  system 
that  Henry  directed  his  bitterest  invectives.  He  charged  it 
with  an  attempt  to  abolish  trial  by  jury;  with  menacing 
debtors  by  the  clause  against  the  impairment  of  the  obligation 
of  contracts ;  with  endangering  the  state  courts  by  the  number 
of  its  tribunals  armed  with  appellate  jurisdictions,  and  with 
the  right  to  hear  controversies  between  a  state  and  the  citizens 

Marshall.  of  another  state.  Marshall,  who  was  to  breathe  the  breath  of 
life  into  that  system  and  make  it  what  it  is  to-day,  spoke  his  first 
words  in  its  favor  in  a  masterly  oration  in  which  he  said:  "A 
suit  instituted  in  the  federal  courts  by  the  citizens  of  one  state 
against  the  citizens  of  another  state  will  be  instituted  in  the 
court  where  the  defendant  resides,  and  will  be  determined  by 
the  laws  of  the  state  where  the  contract  was  made.  The  laws 
which  govern  the  contract  at  its  formation  govern  it  at  its  deci- 
sion. Whether  this  man  or  that  man  succeeds  is  to  the  govern- 


Federal 

judiciary 

assailed. 


1  Elliot,  iii,  29-33. 
8  Ibid.,  iii,  35-41. 
8  Ibid.,  iii,  25,  26. 


Ibid.,  iii,  387,  388. 
6  Ibid.,  iii,  393-395- 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  215 

ment  all  one  thing.  Congress  is  empowered  to  make  exceptions 
to  the  appellate  jurisdiction  of  the  Supreme  Court,  both  as  to 
law  and  as  to  fact ;  and  these  exceptions  certainly  go  as  far  as  the 
legislature  may  think  proper  for  the  interest  and  liberty  of 
the  people."  l  Henry's  purpose  was  to  excite  the  fears  of  the 
Virginia  planters,  who  owed  ten  millions  of  dollars  to  British  Appeal  to 
merchants,  whose  right  to  sue  in  the  courts  of  Virginia  had  been  debtors* 
suspended  by  the  legislature  largely  through  his  influence. 
When  proceeding  on  that  line  he  assailed  the  new  Constitution 
for  granting  in  that  matter  retrospective  jurisdiction,  Marshall 
answered  that  "there  is  a  difference  between  a  tribunal  which 
shall  give  effect  to  an  existing  right  and  creating  a  right  that 
did  not  exist  before.  The  debt  or  claim  is  created  by  the  indi- 
vidual ;  a  creation  of  a  new  court  does  not  amount  to  a  retro- 
spective law."  2  After  Henry  had  delivered  himself  on  the 
prospect  for  separate  confederacies,3  the  hope  of  which  South 
Carolina  had  blighted,  after  Mason,  Madison,  and  Tyler  had 
spoken  on  the  slave  trade,  which  the  last-named  denounced  as 
"this  wicked  traffic,"  4  after  Henry  had  raised  a  new  cry  as  to 
the  dangers  of  emancipation,  after  Johnson  had  complained 
that  the  bill  of  rights  prepared  by  the  Convention  as  an  amend- 
ment to  the  Constitution  did  not  acknowledge  that  all  men  are 
by  nature  free  and  independent,  after  it  was  alleged  that  the 
adoption  of  the  Constitution  would  result  in  the  renunciation 
by  the  new  government  of  the  right  to  navigate  the  Mississippi, 
after  Tyler  had  mourned  over  his  concession  of  the  right  to 
regulate  commerce,  after  the  minds  of  the  debtor  class  had 
been  filled  with  anxiety  as  to  the  effect  of  the  prohibition  on 
the  states  to  issue  paper  money,  —  Henry,  still  defiant,  cried  Henry's  defiant 
out:  "Old  as  I  am,  it  is  probable  I  may  yet  have  the  appellation  outcry- 
of  rebel.  But  my  neighbors  will  protect  me."  5  After  he  had 
been  pacified,  for  his  nature  was  genial,  he  finally  said  on  the 
last  day,  "HI  shall  be  in  the  minority,  I  shall  yet  be  a  peace- 
able citizen,  my  head,  my  hand,  and  my  heart  being  at  liberty 
to  remove  the  defects  of  the  system  in  a  constitutional  way."  6 
The  steadfast  spokesman  of  Washington  had  won  the  day.  The 

1  Elliot,  iii,  556,  557,  558.  a  country  as  this,  small  confederacies 

1  Ibid.,  iii,  539,  546,  561.  are  little  evils."  Ibid.,  iii,  161. 
8  He  said:  "Compared  with  the          4  Ibid.,  iii,  454,  455. 

consolidation  of  one  power  to  reign          6  Ibid.,  iii,  546. 

with  a  strong  hand  over  so  extensive          6  Ibid.,  iii,  652. 


216 


THE  AMERICAN  CONSTITUTION 


[CH. 


Unconditional 
ratification. 


New  York 
ratified 
July  26. 


The  "  Federal 
Farmer." 


patient,  the  patriotic,  the  resourceful  Madison,  supported  as 
he  was  by  Randolph,  Marshall,  Pendleton,  Nicholas,  Innes, 
Corbin,  and  Henry  Lee,  saved  the  fame  of  the  "unerring  sister" 
at  a  moment  when  its  peril  was  great  indeed.  After  the  dangers 
incident  to  a  conditional  ratification  were  passed,  the  roll  was 
called  on  June  25,  upon  which  eighty-nine  delegates  voted 
for  the  Constitution,  while  seventy-nine  declared  against  it. 
Thus  by  a  narrow  margin  the  greatest  of  the  states  was  rescued 
from  a  suicidal  policy  whose  success  would  have  resulted  in  the 
destruction  of  the  Union;  and  in  the  creation  of  a  series  of 
impotent  confederacies.  The  unconditional  ratification,  which 
referred  all  amendments  to  the  First  Congress  under  the 
Constitution,  was  attended  with  "a  few  declaratory  truths 
not  affecting  the  validity  of  the  act."  l 

Madison  was  no  more  faithful  or  helpful  to  the  cause  in 
Virginia  than  was  Hamilton  in  New  York.  So  long  as  the  Con- 
stitution was  in  peril,  these  master  builders  were  united  by  a 
oneness  of  purpose  which  imparted  to  their  relations  the  charm 
of  intimacy  and  affection.  The  influence  of  "The  Federalist," 
which  Hamilton  had  designed  as  a  means  of  preparing  the 
people  for  the  acceptance  of  the  great  invention,  was  met  by 
inflammatory  tracts  and  letters  from  the"  Federal  Farmer,"  by 
Richard  Henry  Lee,  circulated  through  the  federal  republicans, 
whose  electioneering  centre  was  the  custom-house,  then  a  state 
institution  at  New  York.  A  committee  of  correspondence  was 
formed  with  branches  throughout  the  country,  which  drew 
answers  from  many  who  were  willing  to  denounce  the  new  Con- 
stitution as  "an  elective  despotism."  Back  of  that  opposition 
was  Governor  Clinton,  whose  unpatriotic  policy  had,  at  a  crit- 
ical moment,  withdrawn  Yates  and  Lansing  from  the  Conven- 
tion, he  declaring  unreservedly  at  the  time  that  no  good  was  to 
be  expected  from  the  proceedings  at  Philadelphia.2  In  that 
hostile  spirit  the  governor,  at  the  regular  meeting  of  the  legis- 
lature in  January,  1788,  while  recommending  the  encourage- 
ment of  manufactures  and  commerce,  sent  in  the  proceedings 
of  the  Federal  Convention  without  a  word.3  However,  upon  the 

1  Madison    to    Washington,    in  people  of  the  United  States  and  at 

Rives,  ii,  608.    The  rights  of  the  their  will."  Elliot,  iii,  656. 

states  were  guarded  by  the  assertion  2  Penn.  Packet,  26th  July,  1787. 

"that  every  power  not  granted  by  8  Ind.  Gazetteer,  Jan.  19,  1788. 
the   Constitution  remains    for  the 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  217 

motion  of  Benson,  a  convention  was  ordered  which  met  at  Convention 
Poughkeepsie  June  17,  under  the  presidency  of  Clinton,  who  k2p 
was  supported  by  Yates  and  Lansing,  Samuel  Jones,  an  emin-  June  17. 
ent  member  of  the  New  York  Bar,  and  Melancthon  Smith,  a 
man  of  religious  temper  who  is  said  to  have  been  gifted  with 
the  power  of  moderation.  That  group  was  confronted  by 
Hamilton,  Jay,  Livingston,  then  chancellor  of  the  state,  Chief 
Justice  Morris,  Hobart,  and  Duane.  When,  on  the  iQth, 
Livingston  opened  the  debate,  after  demonstrating  the  advant-  Debate 
ages  of  a  composite  state  over  a  mere  league,  he  asserted  that  LMngston. 
without  a  strong  federal  government  New  York  was  incapable 
of  self-defense,  surrounded  as  she  was  with  British  posts  within 
her  limits  capable  of  forming  connections  with  hostile  Indian 
tribes  whereby  the  city  might  be  held  in  defiance  of  treaties.1 
After  Lansing  and  Melancthon  Smith  had  discharged  their 
artillery,  Hamilton  was  cheered  on  the  24th  by  tidings  brought 
by  swift  riders  that  New  Hampshire  as  the  ninth  state  had 
ratified  the  Constitution.  But  Clinton  still  stood  undaunted, 
denouncing  his  opponents  as  "the  advocates  of  despotism," 
notably  Hamilton,  who  "had  in  substance,  though  not  ex- 
plicitly, thrown  off  the  mask,  his  arguments  tending  to  show 
the  necessity  of  a  consolidated  continental  government  to  the 
exclusion  of  any  state  government."  Thus  beset,  Hamilton  Hamilton, 
wrote  to  Madison,  saying,  "Our  chance  of  success  depends  upon 
you.  Symptoms  of  relaxation  in  some  of  the  leaders  authorize 
a  gleam  of  hope  if  you  do  well,  but  certainly  I  think  not  other- 
wise." 2  On  the  very  next  day  the  Virginia  Convention  acted 
favorably,  but  it  was  not  until  July  3  that  the  assembly  at 
Poughkeepsie,  while  still  considering  the  Constitution  and  pro- 
posed amendments,  received  the  glad  tidings  of  the  uncon- 
ditional ratification.  From  that  time  the  only  question  was 
whether  or  no  New  York  would  so  ratify.  On  the  loth  Lansing  Bill  of  Rights 
offered  a  bill  of  rights  to  which  no  one  objected,  but  with  it  he  ° 
coupled  numerous  amendments  3  which  were  made  conditions 
of  ratification ;  and  on  the  next  day  Melancthon  Smith  added  a 
resolution  which  proposed  in  substance  that  New  York  would 
join  the  Union,  reserving  the  right  to  withdraw  from  it  if  the 
proposed  amendments  were  not  accepted.4  In  the  midst  of 

1  Elliot,  ii,  208-216.  *  Penn.  Packet,  July  18,  1788. 

2  Hamilton's  Works,  i,  462.  4  For  Hamilton's  crushing  speech 


218 


THE  AMERICAN  CONSTITUTION 


[CH. 


Madison's 
letter. 


Hamilton's 
triumph. 


North  Caro- 
lina ratified 
November  21, 
1789. 


that  new  peril  Hamilton  appealed  to  Madison,  who  had 
returned  to  Philadelphia;  and  on  the  2 1st,  he  was  able  to  read 
to  the  convention  the  answer  in  which  he  said :  "My  opinion  is, 
that  a  reservation  of  a  right  to  withdraw,  if  amendments  be  not 
decided  on  under  the  form  of  the  Constitution  within  a  certain 
time,  is  a  conditional  ratification;  that  it  does  not  make  New 
York  a  member  of  the  new  Union,  and,  consequently,  that  she 
could  not  be  received  on  that  plan.  The  Constitution  requires 
an  adoption  in  toto  and  forever."  l  Under  the  pressure  of  that 
opinion  from  Madison  it  was  resolved  that  New  York,  follow- 
ing in  the  footsteps  of  Massachusetts,  would  be  content  with 
the  declaration  of  Hancock,  and  make  no  conditions,  and  thus 
ratify  "in  full  confidence"  of  the  adoption  of  all  necessary 
amendments.  Not,  however,  until  it  was  agreed  unanimously 
that  a  circular  letter  should  be  laid  before  the  different  legisla- 
tures recommending  a  general  convention  to  act  upon  all  pro- 
posed amendments,  was  that  step  finally  taken  on  the  26th,  by 
a  vote  of  thirty  against  twenty-seven.  It  is  comforting  to  know 
that  in  the  midst  of  the  unbounded  enthusiasm  that  pervaded 
every  class  as  the  citizens  of  New  York  marched  in  a  proces- 
sion of  unparalleled  splendor,  homage  was  paid  to  the  victor  in 
the  form  of  a  miniature  ship  drawn  through  the  streets  bearing 
the  name  of  Hamilton.  If  Madison  and  Charles  Pinckney  did 
more  to  force  "the  new  system"  through  the  Federal  Conven- 
tion, neither  surpassed  him,  either  in  zeal  or  efficiency,  when 
the  time  came  to  secure  its  ratification  by  the  state  conventions 
that  gave  it  their  approval. 

Not  until  November  21,  1789,  sometime  after  the  new  gov- 
ernment was  in  motion,  did  North  Carolina  come  into  the 
Union.  Her  convention  had  assembled  at  Hillsboro  as  early  as 
July  21, 1788,  under  the  presidency  of  Johnson,  then  governor, 
the  dominating  intellectual  force  being  James  Iredell,  after- 
ward appointed  to  the  Supreme  Bench  of  the  United  States, 
who  was  ably  supported  by  William  R.  Davie,  Samuel  John- 
son, Richard  Dobbs  Spaight,  and  Archibald  Maclaine.  For 
a  long  time  there  was  doubt  and  hesitation.  Willie  Jones,  who 
controlled  the  majority,  said:  "We  do  not  determine  on  the 
Constitution ;  we  neither  reject  nor  adopt  it ;  we  leave  ourselves 

Hamilton's  Works,  i,  465. 


of  the  iQth  against  that  proposal, 
see  Works,  ii,  467-471. 


VII.]      THE  FEDERAL   CONVENTION  AND  ITS  WORK  219 

at  liberty ;  there  is  no  doubt  we  shall  obtain  our  amendments 

and  come  into  the  Union."  l  Not  until  properly  assured  on  that 

point  did  North  Carolina  finally  withdraw  all  opposition  and 

ratify  at  Fayetteville  at  the  time  stated.    On  May  29,  1790, 

Rhode  Island,  the  only  state  that  did  not  participate  in  the  Rhode  Island, 

proceedings  at  Philadelphia,  after  forcing  the  call  of  a  conven-  May  29)  I79°- 

tion  by  an  accidental  majority  of  one,2  yielded  to  the  fear  of 

remaining  in  isolation,  and,  at  the  eleventh  hour,  bowed  to 

the  inevitable. 

Thus  ended  in  triumph  the  great  drama  in  the  history  of 
humanity  that  opened  with  the  invention  of  the  "wholly 
novel  theory,"  February  16,  1783,  and  closed  with  its  final 
acceptance  as  a  working  system  of  government  by  the  last  of 
the  thirteen  states,  May  29,  1790.  Its  first  act  was  one  of  Summary, 
creation  proceeding  from  a  single  mind  that  wrought  a  revolu- 
tion in  political  science  by  making  an  entirely  new  combina- 
tion of  political  principles  without  a  prototype  in  history.  Its 
second  act  was  one  of  adaptation  proceeding  from  an  organized 
body  of  marvelous  men,  at  once  so  scientific  and  so  practical 
as  to  be  able  to  readjust  a  novel  and  highly  complex  political 
theory  and  then  apply  it  as  a  working  system  of  government 
under  the  most  difficult  of  all  circumstances.  Its  third  act 
was  one  of  coercion  proceeding  from  the  combined  pressure  of 
a  set  of  compelling  conditions  backed  by  the  driving  force  of  an 
almost  irresistible  personality  intent  upon  saving  the  states 
from  anarchy  by  subjecting  them  to  the  common  yoke  of  an 
equitable  and  indestructible  union.  The  intellectual  side  of 
the  movement  finds  its  source  in  a  man  of  contemplation,  who 
worked  behind  a  curtain  which,  until  now,  has  almost  concealed 
him  from  the  view  of  the  world.  The  material  and  political 
side  of  the  movement  finds  its  driving  force  in  the  Titanic 
form  of  a  man  of  action,  who,  without  effort,  impressed  all 
mankind  from  the  outset  with  the  grandeur  of  his  achieve- 
ments. Such  is  the  relation  in  which  Pelatiah  Webster  stands 
to  Washington. 

1  In  the  mean  time  it  was  agreed          *  How  that  was  accomplished  is 

that    any  impost  Congress    might  told  in  a  letter  from  Rhode  Island 

impose  should  be  collected  in  North  published  in  the  New  York  Packet, 

Carolina  by  the  state  "for  the  use  February  20,   1790.    See  Andrews, 

of  Congress."  See  Bancroft,  ii,  349-  History    of    the    United    States,    i, 

350.  240. 


220 


THE  AMERICAN  CONSTITUTION 


[CH. 


Congress  noti- 
fied of  action 
of  nine  states, 
July  2,  1788. 


Choice  of 
electors 
ordered  Sep- 
tember 13. 


Votes  for 
President  and 
Vice-President 
counted 
April  6. 


Washington 
became  seat 
of  government, 
1800. 


By  a  resolution  of  the  Federal  Convention  it  was  provided 
that  each  state  convention,  assenting  to  or  ratifying  the  new 
Constitution,  "should  give  notice  thereof  to  the  United  States 
in  Congress  assembled."  As  early  as  July  2, 1788,  Congress  was 
thus  notified  that  the  Constitution  had  received  the  approval 
of  nine  states.  Not,  however,  until  more  than  two  months  had 
been  wasted  in  a  contention  as  to  the  permanent  seat  of  the 
new  government,  fixed  temporarily  at  New  York,  did  Congress, 
on  September  13,  set  the  first  Wednesday  in  January,  1789, 
for  the  choice  of  electors  of  President  in  the  several  states,  the 
first  in  February  for  their  ballot,  and  the  first  in  March  for  the 
commencement  of  proceedings  under  the  new  system.  As  the 
first  Wednesday  in  March,  1789,  was  the  4th,  that  date  has 
since  been  retained  as  the  initial  one  for  congresses  and  pre- 
sidencies.   In  deference  to  the  dilatory  practice  of  the  past 
there  was  no  quorum  in  either  branch  of  the  First  Congress 
on  March  4.  When  on  April  6  the  Senate  chose  John  Langdon 
as  its  president,  the  House  of  Representatives,  which  had 
formed  its  quorum  on  April  I,  was  immediately  summoned, 
and  in  the  presence  of  the  two  houses  he  opened  and  counted  the 
votes,  every  one  of  the  sixty-nine,  cast  by  the  ten  states  that 
took  part  in  the  election,  being  for  Washington.  As  John  Adams 
had  thirty-four  votes,  no  other  obtaining  more  than  nine,  he  was 
declared  Vice-President.    After  casting  upon  the  Senate  the 
duty  of  notifying  the  chosen  ones  of  their  election,  the  House 
proceeded  to  business.   The  strangest,  the  most  unique  of  all 
political  crafts  was  now  under  way,  with  the  greatest  of  all 
pilots  at  the  prow.  After  holding  its  first  session  at  New  York, 
the  First  Congress  on  December  6,   1790,  removed  to  Phil- 
adelphia, chosen  by  the  Act  of  July  16,  1790,  as  the  temporary 
seat  of  government.  There  Congress  remained  until  the  second 
session  of  the  Sixth  (1800),  when  under  the  Act  approved 
April  24 1  of  that  year  the  President  was  authorized  to  direct 
the  removal  of  the  various  executive  departments  to  the  city 
of  Washington  at  any  time  after  the  adjournment  of  the  first 
session  of  the  Sixth  Congress  and  before  the  time  fixed  by  the 
Act  of  July  16, 1790,*  for  the  transfer  of  the  seat  of  government 


1  2  Stats.  557. 

9  By  that  act  it  was  provided 
'that  on  the  said  first  Monday  in 


December,  in  the  year  one  thousand 
eight  hundred,  the  seat  of  the  Gov- 
ernment of  the  United  States  shall, 


VII.]      THE  FEDERAL  CONVENTION  AND  ITS  WORK  221 

to  that  place.  On  the  day  of  the  first  meeting  of  the  Supreme 
Court  in  the  permanent  capitol  of  the  nation,  February  4, 
1801,  Marshall  took  his  place  for  the  first  time  as  Chief  Just- 
ice, and  as  such  he  sat  in  the  midst  of  six  associates,  for  thirty- 
four  years. 

by  virtue  of  this  act,  be  transferred      tion  of  the  District  selected  for  the 
to  the  District  and  place  aforesaid,"      federal  city, 
the  place  referred  to  being  the  por- 


CHAPTER  VIII 


THE  FIRST  TWELVE  ARTICLES   OF  AMENDMENT 


New  Constitu- 
tion not  pre- 
faced by  a  bill 
of  rights. 


Lack  supplied 
by  a  series  of 
amendments 
proposed  by 
the  states. 


Varying  in- 
terpretation 
of  Magna 
Carta. 


THE  position  of  those  who  opposed  the  adoption  of  the  new 
Constitution  because  it  was  not  prefaced  by  a  bill  of  rights  was 
neither  factious  nor  unreasonable.  When  the  new  state  con- 
stitutions came  into  existence,  the  tendency  was  general  to 
preface  them  with  bills  of  rights  in  which  were  epitomized,  as 
explained  heretofore,1  all  of  the  seminal  principles  of  the  Eng- 
lish Constitution  for  the  protection  of  the  citizen  against  the 
Crown,  as  those  principles  had  been  re-defined  in  the  glorious 
Revolutions  of  1640  and  1688.  At  the  base  of  that  body  of 
protective  constitutional  law  was  that  part  of  Magna  Carta 
(chapter  39)  out  of  which  grew  the  modern  conception  of  "due 
process  of  law."  As  the  Supreme  Court  has  expressed  it: 
"The  equivalent  of  the  phrase  'due  process  of  law,'  according 
to  Lord  Coke,  is  found  in  the  words  'law  of  the  land,'  in  the 
Great  Charter,  in  connection  with  the  writ  of  habeas  corpus, 
the  trial  by  jury,  and  other  guaranties  of  the  rights  of  the  sub- 
ject against  the  oppression  of  the  Crown.  In  the  series  of 
amendments  to  the  Constitution  of  the  United  States,  pro- 
posed and  adopted  immediately  after  the  organization  of  the 
government,  which  were  dictated  by  the  jealousy  of  the  states 
as  further  limitations  upon  the  power  of  the  Federal  Govern- 
ment, it  is  found  in  the  Fifth,  in  connection  with  other  guar- 
anties of  personal  rights  of  the  same  character.  Among  those 
are  protection  against  prosecutions  for  crimes,  unless  sanc- 
tioned by  a  grand  jury;  against  being  twice  tried  for  the  same 
offense;  against  the  accused  being  compelled,  in  a  criminal 
case,  to  testify  against  himself;  and  against  taking  private 
property  for  public  use  without  just  compensation."  2  Magna 
Carta  as  "a  sacred  text,  the  nearest  approach  to  a  'funda- 
mental statute'  that  England  has  ever  had,"  3  was  interpreted 


1  See  above,  p.  76  sq. 
*  Davidson  v.  New    Orleans,  96 
U.  S.  97- 


1  Pollock  and  Maitland,  Hist,  of 
Eng.  Law,  2d  ed.,  i,  173. 


VIII.]      THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  223 

in  each  age  according  to  the  necessities  of  the  times.  With  the 
broad  construction  put  upon  it  by  the  statesmen  and  lawyers 
of  the  seventeenth  century  during  the  constitutional  struggles 
with  the  Stuarts,  which  construction  became  fixed  in  the  com- 
mentaries of  Coke  and  Blackstone,  it  became  at  the  close  of 
the  American  Revolution  the  corner-stone  of  American  consti- 
tutional law.1  Upon  that  base  were  superimposed  the  more 
modern  principles  defined  during  the  Revolutions  of  1640  and  Supplemented 
1688,  and  embodied  in  the  Acts  of  the  Long  Parliament  (1640- 
1641),  the  Petition  of  Right  (1628),  the  Habeas  Corpus  Act 
(1679),  the  Bill  of  Rights  (1689),  and  the  Act  of  Settlement 
(i 700 -1 701  ),2  which  Hallam  has  characterized  as  "the  seal  of 
our  constitutional  laws,  the  complement  of  the  Revolution 
itself  and  the  Bill  of  Rights,  and  the  last  great  statute  which 
restrains  the  power  of  the  Crown." 3  Out  of  England's  funda- 
mental statutes  were  fabricated  the  bills  of  rights  by  which  the 
first  state  constitutions  were  prefaced,  and  out  of  those  bills  of 
rights  were  coined  the  first  nine  amendments  to  the  Constitu- 
tion of  the  United  States. 

In  the  Federal  Convention,  Randolph,  "animadverting  on  Randolph  and 
the  indefinite  and  dangerous  power  given  by  the  Constitution 
to  Congress,  expressing  the  pain  he  felt  at  differing  from  the 
body  of  the  Convention  on  the  close  of  the  great  and  awful 
subject  of  their  labors,  and  anxiously  wishing  for  some  ac- 
commodating expedient  which  would  relieve  him  from  his  em- 
barrassments, made  a  motion  importing  '  that  amendments  to 
the  plan  might  be  offered  by  the  state  conventions,  which  should 
be  submitted  to,  and  finally  decided  on  by,  another  general 
convention.' "  4  Gerry  then  said  that  he  could  get  over  all  his 
difficulties  "if  the  rights  of  the  citizens  were  not  rendered 
insecure  —  first,  by  the  general  power  of  the  legislature  to 
make  what  laws  they  may  please  to  call '  necessary  and  proper ' ; 
secondly,  to  raise  armies  and  money  without  limit;  thirdly,  to 
establish  a  tribunal  without  juries,  which  will  be  a  Star  Cham- 
ber as  to  civil  cases.  Under  such  a  view  of  the  Constitution, 
the  best  that  could  be  done,  he  conceived,  was  to  provide  for 
a  second  general  convention. "  5  While  all  the  states  answered 

1  See  above,  p.  76.  »  Const.  Hist.,  iii,  196. 

8  Cf.  The  Origin  and  Growth  of  the          4  Madison  Papers,  iii,  1593. 
Eng.  Const.,  ii,  308;  268;  380;  414.          •  Ibid.,  iii,  1595. 


224 


THE  AMERICAN  CONSTITUTION 


[CH. 


Fears  of  Pela- 
tiah  Webster. 


Lee's  demand 
for  a  bill  of 
rights. 


no  to  that  proposal,  the  conviction  lingered  that  certain 
amendments  limiting  the  sovereign  powers  of  the  new  system, 
especially  the  legislative  power,  should  be  promptly  adopted. 
Pelatiah  Webster  was  evidently  oppressed  by  the  fears  ex- 
pressed by  Randolph  and  Gerry,  when  he  said  with  solemn 
emphasis:  "But  now  the  great  and  most  difficult  part  of  this 
weighty  subject  remains  to  be  considered,  viz.,  how  these 
supreme  powers  are  to  be  constituted  in  such  manner  that  they 
may  be  able  to  exercise  with  full  force  and  effect  the  vast 
authorities  committed  to  them,  for  the  good  and  well-being 
of  the  United  States,  and  yet  be  so  checked  and  restrained 
from  exercising  them  to  the  injury  and  ruin  of  the  states,  that 
we  may  with  safety  trust  them  with  a  commission  of  such  vast 
magnitude  —  and  may  Almighty  Wisdom  direct  my  pen  in  this 
arduous  discussion."  As  stated  heretofore  he  proposed  to  meet 
the  difficulty  by  a  provision  "that  the  powers  of  Congress, 
and  all  the  other  departments,  acting  under  them,  shall  all  be 
restricted  to  such  matters  only  of  general  necessity  and 
utility  to  all  the  states  as  cannot  come  within  the  jurisdiction 
of  any  particular  state,  or  to  which  the  authority  of  any  par- 
ticular state  is  not  competent:  so  that  each  particular  state 
shall  enjoy  all  sovereignty  and  supreme  authority  to  all  in- 
tents and  purposes,  excepting  only  those  high  authorities  and 
powers  by  them  delegated  to  Congress,  for  the  purposes  of  the 
general  Union."  As  the  Convention  did  not  see  fit  so  to  limit 
the  powers  of  the  new  system  it  is  very  natural  that  an  obstruc- 
tionist like  Lee  should  have  contended,  after  the  submission 
of  it  to  Congress  in  September,  that  it  should  be  restrained 
by  a  bill  of  rights,  with  provisions  relating  to  the  freedom  of 
speech  and  the  press,  to  the  rights  of  conscience,  to  trial  by 
jury  in  civil  cases  as  well  as  criminal,  to  freedom  of  elections, 
to  the  prohibition  of  standing  armies,  to  the  independence  of 
the  judges,  to  security  against  excessive  bail,  fines,  or  punish- 
ments, to  unreasonable  searches  or  seizures  of  persons,  houses, 
papers,  and  property,  and  to  the  right  of  petition.1  After 
Congress  had  acted  adversely  on  Lee's  suggestion,  the  subject 

1  "Where,"     said    Lee,  "is    the  rights  of  the  people  who  are  gov- 

contract  between  the    nation    and  erned."     Minister  Otto   to   Count 

the  government?   The  Constitution  Montmorin,    New   York,   Oct.   23, 

makes  no  mention  but  of  those  who  1787.     Bancroft,  ii,  227. 
govern,  and  never  speaks  of  the 


VIII.]      THE  FIRST^  TWELVE  ARTICLES  OF  AMENDMENT  225 

of  amendments  was  renewed  with  vigor  in  the  several  state  Subject  of 
conventions   to  which   the  Constitution   was   referred.     As  ameQdments  in 
stated  heretofore,  a  happy  solution  was  offered  by  the  con-  tions. 
vention  of  Massachusetts,  which  agreed  unconditionally,  in 
the  words  of  Hancock,  "to  the  Constitution,  in  full  confidence 
that  the  amendments  proposed  will  soon  become  a  part  of  the 
system.   The  people  of  this  commonwealth  will  quietly  acqui- 
esce in  the  voice  of  the  majority,  and,  where  they  see  a  want 
of  perfection  in  the  proposed  form  of  government,  endeavor, 
in  a  constitutional  way,  to  have  it  amended."  l   Before  Han- 
cock made  that  statement,  amendments  had  been  offered  by 
himself  and  others,  —  one  set  embracing  the  general  declara-  The  Massachu- 
tion  which  reserved  to  the  states  or  the  people  the  powers  not  setts  Precedent' 
delegated  to  the  United  States;  another  embodying  certain 
restraints  upon  the  powers  granted  to  Congress  with  respect 
to  direct  taxes,  elections,  the  commercial  power,  the  juris- 
diction of  the  courts,  and  to  the  holding  of  titles  or  offices 
conferred  by  foreign  sovereigns;  while  a  third  related  to  the 
presentment  by  a  grand  jury  for  crimes  by  which  an  infamous 
or  a  capital  punishment  might  be  inflicted,  and  to  trial  by  jury 
in  civil  actions  at  common  law  between  citizens  of  different 
states.  Madison  promptly  adopted  and  commended  the  policy  Commended 
of  Massachusetts.    Writing  to  Randolph  on  April  10,  1788,  byMadison- 
he  said:  "A  conditional  ratification  or  a  second  convention 
appears  to  me  utterly  irreconcilable  with   the  dictates  of 
prudence  and  safety.    Recommendatory  alterations  are  the 
only  ground  for  a  coalition  among  the  real  Federalists."  2  Upon 
that  basis  the  state  conventions  ratified  unconditionally,  with 
the  tacit  understanding  that  a  bill  of  rights  would  be  offered  to 
the  states  by  the  First  Congress  in  the  form  of  amendments 
to  be  adopted  in  the  mode  prescribed  by  the  new  Constitution. 

Into  the  First  Congress,  organized  for  business  April  6,  Composition 
1789,  were  introduced  189  bills,  46  in  the  Senate  and  143  in 
the  House.  Into  the  Sixtieth  Congress  the  total  number  intro- 
duced was  about  40,000.  The  House  committees  of  the  First 
Congress  were  elected  by  the  House  itself.  During  the  Second 
they  were  sometimes  elected  and  sometimes  appointed.  Not 
until  the  Fourth  did  the  exclusive  power  of  appointment  pass 

1  See  above,  p.  210. 

1  Madison's  Works,  i,  386,  and  376-379. 


226 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Organization 
of  the  judi- 
ciary. 


into  the  Speaker's  hands.  From  that  time  onward  the  growth 
of  his  powers  represents  an  evolution  whose  advance  synchron- 
izes with  the  growth  of  the  business  of  the  House.1  Among 
those  who  passed  from  the  Federal  Convention  to  the  new 
Congress  may  be  mentioned  Langdon  of  New  Hampshire, 
Ellsworth  and  Johnson  of  Connecticut,  Rufus  King  of  New 
York,  Robert  Morris  of  Pennsylvania,  Gouverneur  Morris, 
then  of  New  York,  Caleb  Strong  of  Massachusetts,  Paterson 
of  New  Jersey,  Dickinson  and  Bassett  of  Delaware,  Alexander 
Martin  and  Blount  of  North  Carolina,  Charles  Pinckney  and 
Butler  of  South  Carolina,  and  Colonel  Few  of  Georgia,  all  of 
whom  became  Senators.  The  following  became  members  of 
the  House  of  Representatives :  Madison  of  Virginia,  Sherman 
of  Connecticut,  Gilman  of  New  Hampshire,  Baldwin  of 
Georgia,  Dayton  of  New  Jersey,  Gerry  of  Massachusetts, 
Fitzsimons  of  Pennsylvania,  Carroll  of  Maryland,  and 
Spaight  and  Williamson  of  North  Carolina.2  In  order  to  put 
the  new  judicial  machinery  in  motion  it  was  necessary  for  the 
First  Congress  to  enact  the  famous  Judiciary  Act  of  1789. 
"That  great  act  was  penned  by  Oliver  Ellsworth,  a  member  of 
the  Convention  which  framed  the  Constitution,  and  one  of  the 
early  Chief  Justices  of  this  Court.  It  may  be  said  to  reflect 
the  views  of  the  founders  of  the  Republic  as  to  the  proper  re- 
lations between  the  federal  and  state  courts."  3  After  provid- 
ing for  the  organization  of  the  Supreme  Court,  the  Judiciary 
Act,  in  order  further  to  vitalize  the  grant  of  judicial  power 
contained  in  the  Constitution,  created  thirteen  primary 
courts,  known  as  District  Courts,  with  exclusive  jurisdiction 
of  certain  crimes  described  in  the  Act,  of  all  civil  cases  of 
admiralty  and  maritime  jurisdiction,  and  of  all  suits  for  penal- 
ties and  forfeitures  incurred  under  the  laws  of  the  United 
District  Courts.  States.  To  the  District  Courts  was  also  given  jurisdiction, 
concurrently  with  the  courts  of  the  several  states,  or  the  Circuit 
Courts,  as  the  case  may  be,  of  certain  cases  arising  under  the 
law  of  nations,  or  treaties,  of  certain  suits  at  common  law  where 
the  United  States  is  plaintiff,  and  of  certain  suits  exclusive 

1  See  the  author's  article  on  "  The  Gilman,  and  Baldwin  were  promoted 

Speaker  and  his  Powers,"  in  North  to  the  Senate. 
Am.  Review  for  October,  1908.  •  Mr.  Justice  Field,  in  Virginia  t». 

1  Cf.    Andrews,    History    of  the  Rives,  100  U.  S.  338. 
United  Styles,  i,  236-237.  Sherman, 


Supreme 
Court. 


VIII.]      THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  227 

of  the  courts  of  the  several  states,  against  consuls  or  vice- 
consuls.  The  districts,  excepting  those  of  Maine  and  Ken- 
tucky, were,  at  the  outset,  grouped  in  three  circuits,  the  east- 
ern, middle,  and  southern ;  and  it  was  provided  that  there  should 
be  held  annually  in  each  district  of  said  circuits,  two  courts, 
which  should  be  called  Circuit  Courts,  and  should  consist  of 
any  two  justices  of  the  Supreme  Court,  and  the  district  judges 
of  such  districts.  The  Circuit  Courts  thus  created  were  endowed  Circuit  Courts. 
with  original  cognizance  —  concurrently  with  the  courts  of  the 
several  states  —  of  certain  cases,  with  exclusive  cognizance  of 
certain  crimes  and  offenses  against  the  United  States,  and  with 
jurisdiction —concurrently  with  the  District  Courts — of  cer- 
tain other  crimes  defined  in  the  Act.  In  the  Circuit  Courts  was 
also  vested  appellate  jurisdiction  over  the  District  Courts, 
"under  the  regulations  and  restrictions  hereinafter  provided." 
To  the  Supreme  Court  of  the  United  States  was  likewise  given 
"  appellate  jurisdiction  from  the  Circuit  Courts  and  courts  of  the 
several  states,  in  the  cases  hereinafter  specially  provided  for."  l 

While  Ellsworth  thus  wrought  in  the  judicial  order,  Madison  Madison 
undertook  the  preparation  of  the  bill  of  rights  promised  by  the  ^  g0°se 
friends  of  the  new  Constitution  as  an  inducement  to  its  adop- 
tion.  By  common  consent  the  leadership  of  the  House  seems 
to  have  been  conceded  to  Madison  by  reason  of  his  ability,  of 
his  thorough  familiarity  with  the  new  Constitution,  and  of  his 
methodical  habits.    Under  his  business  management  every- 
thing was  brought  forward  in  its  proper  order.   After  facilitat- 
ing the  passage  of  an  impost  bill  to  provide  necessary  revenue, 
he  was  active  in  organizing  the  administrative  machinery  Administrative 
indispensable  to  its  appropriation.   Resolutions  to  create  the  machinery- 
departments  of  Foreign  Affairs,  of  the  Treasury,  and  of  War 
were  offered  by  Madison,  —  the  principle  of  removability  by 
the  President,  with  regard  to  the  heads  of  departments,  being 
incorporated  as  to  all  of  them.    During  the  same  Congress  an 
act  was  passed  adding  additional  duties,  relating  to  domestic 
administration,  to  the  Department  of  Foreign  Affairs,  hence- 
forth to  be  known  as  the  "  Department  of  State,"  whose  prin- 
cipal officer  was  designated  as  the   "Secretary  of  State." 
With  these  preliminary  matters  disposed  of,  Madison  deemed 

1  Cf .  Taylor,  Jurisdiction  and  Procedure  of  the  Supreme  Court  of  the  United 
States,  20-23. 


228 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Twelve 
amendments 
offered  June  8, 
1789. 


A  Declaration 
of  Rights. 


Ten  amend- 
ments adopted. 


it  his  duty  to  direct  the  attention  of  Congress  to  the  import- 
ance of  removing,  by  a  wise  exercise  of  the  power  of  amend- 
ment, the  honest  doubts  and  apprehensions  existing  with  re- 
gard to  the  security  of  the  rights  of  the  people  under  the  new 
system.  He  took  the  first  step  on  June  8,  when  he  introduced 
a  series  of  propositions,  offering  the  desired  guarantees,  in  the 
form  of  twelve  amendments.  "It  appears  to  me,"  he  said, 
"that  this  House  is  bound,  by  every  motive  of  prudence,  not 
to  let  their  first  session  pass  over,  without  proposing  to  the 
state  legislatures  something  to  be  incorporated  into  the  Con- 
stitution, that  will  render  it  as  acceptable  to  the  whole  people 
of  the  United  States  as  it  has  been  found  to  be  to  a  major- 
ity of  them.  It  will  be  desirable  to  extinguish  from  the  bosom 
of  every  member  of  the  community  any  apprehensions,  that 
there  are  those  among  his  countrymen  who  wish  to  deprive 
them  of  the  liberty  for  which  they  valiantly  fought  and  freely 
bled.  And  if  there  are  amendments  desired  of  such  a  nature  as 
will  not  injure  the  Constitution,  and  they  can  be  engrafted 
so  as  to  give  satisfaction  to  the  doubting  part  of  our  fellow 
citizens,  the  friends  of  the  Federal  Government,  by  yielding 
them,  will  evince  that  spirit  of  deference  and  concession  for 
which  they  have  been  hitherto  distinguished."  In  the  words 
of  Rives,  "The  amendments  proposed  by  Mr.  Madison  were, 
therefore,  mainly  in  the  nature  of  a  Declaration  of  Rights, 
placing  the  freedom  of  speech,  the  freedom  of  the  press,  freedom 
of  religion,  the  security  of  property,  personal  liberty,  trial 
by  jury,  and  in  general  every  right  and  power  of  the  people 
not  delegated  or  surrendered,  under  the  aegis  of  the  Constitu- 
tion, and  by  an  express  interdiction,  beyond  the  reach  of  the 
Government."  1  The  amendments,  finally  agreed  to  after  pro- 
longed discussion,  were  essentially  those  which  Madison  pro- 
posed, and  in  due  time  ten  of  them  were  ratified  by  the  states. 
Of  the  two  that  were  rejected  one  was  designed  to  secure  a 
fuller  representation  of  the  people  at  the  outset  of  the  govern- 
ment, the  other  to  restrain  Congress  from  voting  themselves 
an  increase  of  compensation  to  take  effect  during  the  current 
term  of  representative  service.  Madison's  commendable  effort 
did  not  succeed,  however,  without  sharp  opposition  from 
Sherman,  Vining,  Smith  of  South  Carolina,  and  Jackson  of 
1  Rives,  The  Life  and  Times  of  James  Madison,  ii,  38-46. 


VIII.l     THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  229 

Georgia.  The  last  named  went  so  far  as  to  declare  that  "our 
instability  will  make  us  objects  of  scorn ;  not  content  with  two 
revolutions  in  less  than  fourteen  years,  we  must  enter  upon 
a  third."  Congress  prefaced  its  resolutions,  proposing  amend- 
ments to  the  Constitution,  —  twelve  in  number,  —  with  this 
preamble:  "The  conventions  of  a  number  of  the  states  having  Preamble, 
at  the  time  of  their  adopting  the  Constitution  expressed  a 
desire,  in  order  to  prevent  misconstruction  or  abuse  of  its 
powers,  that  further  declaratory  and  restrictive  clauses  should 
be  added,  and  as  extending  the  ground  of  public  confidence 
in  the  Government  will  best  insure  the  beneficent  ends  of  its 
institution,"  etc.  Thus  the  fact  was  fixed  in  the  record  that 
the  proposed  amendments  were  intended  simply  to  prevent 
misconstruction  or  abuse  of  powers  by  declaratory  and  re- 
strictive limitations.  It  has  been  settled  from  the  outset  by 
a  long  list  of  authorities  that  the  ten  amendments  actually 
adopted  are  to  be  regarded  as  limitations  on  the  powers  of  the 
Federal  Government  and  not  upon  the  powers  of  the  states.1 
The  first  ten  amendments  were  proposed  to  the  legislatures  of 
the  several  states  by  the  First  Congress,  on  September  25,  Proposed  to 
1789;  and  they  were  ratified  by  the  following  states,  and  the  ^atures, 

.  ,t  t  r  September  25. 

notifications  of  ratification  by  the  governors  thereof  were  suc- 
cessively communicated  by  the  President  to  Congress  in  the 
following  order:  New  Jersey,  November  20,  1789;  Maryland, 
December  19, 1789;  North  Carolina,  December  22, 1789;  South 
Carolina,  January  19,  1790;  New  Hampshire,  January  25, 
1790;  Delaware,  January  28,  1790;  Pennsylvania,  March  10, 
1790;  New  York,  March  27,  1790;  Rhode  Island,  June  15, 
1790;  Vermont,  November  3,  1791;  and  Virginia,  December 
15,  1791.  There  is  no  evidence  on  the  journals  of  Congress  that 
the  legislatures  of  Massachusetts,  Connecticut,  and  Georgia 
ever  ratified  them.  They  are  entitled  "  Articles  in  addition  to, 
and  amendment  of,  the  Constitution  of  the  United  States  of 
America,  proposed  by  Congress,  and  ratified  by  the  legis- 
latures of  the  several  states,  pursuant  to  the  Fifth  Article  of 
the  Original  Constitution." 

1  Barren  v.  Baltimore,  7  Pet.  243;  131;  Re  Sawyer,  124   U.   S.   200; 

Fox  v.  Ohio,  5  How.  410;  Twitchell  Davis   v.   Texas,    139    U.   S.    651; 

v.     Pennsylvania,     7     Wall.     321;  McElvaine  v.  Brush,  142  U.  S.  155; 

United    States   v.    Cruikshank,    92  Miller   v.   Texas,    153    U.    S.    153; 

U.  S.  542;  Spies  v.  Illinois,  123  U.  S.  Brown  v.  New  Jersey,  175  U.  S.  172. 


230 


THE  AMERICAN  CONSTITUTION 


ICe. 


Religious 
liberty. 


Mormon 
Church. 


Freedom  of 
speech  and 
the  press. 


Article  I  provides  that  "Congress  shall  make  no  law  re- 
specting an  establishment  of  religion,  or  prohibiting  the  free 
exercise  thereof;  or  abridging  the  freedom  of  speech,  or  of  the 
press ;  or  the  right  of  the  people  peaceably  to  assemble,  and 
to  petition  the  Government  for  a  redress  of  grievances."  The 
founders  of  the  Republic  fled  from  a  state  church  which  perse- 
cuted with  impartial  severity  Roman  Catholics  and  Protestant 
non-conformists  through  two  sets  of  cruel  statutes  decorated 
on  the  one  hand  by  the  famous  Test  Act  (25  Car.  II,  c.  2), 
passed  "for  preventing  dangers  which  may  happen  from 
Papish  recusants,"  and  on  the  other  by  the  infamous  Con- 
venticle Act  (16  Car.  II,  c.  4),  whereby  every  person  above 
sixteen  years  of  age  present  at  a  conventicle  (defined  as  "any 
meeting  for  religious  worship  at  which  five  persons  were  pre- 
sent besides  the  household")  was  subjected  to  the  penalty  of 
three  months'  imprisonment  for  the  first  offense,  to  six  for  the 
second,  and  for  the  third  to  seven  years  transportation,  after 
conviction  by  jury.  These  persecuting  statutes  were  not  abol- 
ished in  England  until  very  recent  times.1  When  in  1889  the 
Supreme  Court  was  called  upon,  in  the  case  of  the  Mormon 
Church  v.  United  States,2  to  pass  upon  the  constitutionality 
of  the  Act  of  1887  disestablishing  that  church  and  abrogating 
its  charter,  it  was  held  to  be  constitutional,  really  upon  the 
ground  that  Congress  did  not  possess  the  right  originally  to 
establish  the  church  under  the  Amendment.  As  the  territorial 
legislature  derived  all  its  powers  from  Congress,  it  could  not  do 
what  its  creator  could  not  do.  Under  such  conditions  the  only 
alternative  was  the  disestablishment  of  the  church,  and  the 
placing  of  it,  as  to  the  free  exercise  of  its  religious  views,  upon 
the  same  footing  as  all  other  religious  societies.  But  little  need 
be  said  as  to  the  clause  forbidding  Congress  to  pass  any  act 
"abridging  the  freedom  of  speech,  or  of  the  press,"  as  that 
clause  has  been  removed  from  the  Constitution,  so  far  as  the 
mails  are  concerned,  by  the  judgment  rendered  in  1892,  In  re 
Rapier,  wherein  it  was  held  that  Congress  possesses  the  power 
to  establish  and  maintain,  as  to  the  contents  of  the  mails, 
an  Index  Expurgatorius,  once  vested  in  the  Star  Chamber.3 

1  Taylor,  The  Origin  and  Growth          *  143  U.  S.  no.  Great  astonish- 
of  the  Eng.  Const.,  ii,  371,  365,  425.        ment  was  expressed  when  the  Su- 

2  136  U.  S.  i;  130  U.  S.  145.  preme  Court  announced  that  start- 


VIII.]     THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  231 

By  that  decision  an  executive  officer  of  the  post  office  may 
exclude  from  the  mails,  without  trial  by  jury,  any  newspaper 
which  contains  printed  matter  regarded  by  Congress  "as 
injurious  to  the  people."  When  in  1836  President  Jackson  Jackson's 
attempted  to  procure  the  passage  of  just  such  an  act,  forbid-  ^ned  on 
ding  the  circulation  through  the  mails  of  incendiary  literature  by  Webster, 
concerning  slavery,  it  was  defeated.  Daniel  Webster,  who 
trampled  the  proposition  under  foot  in  the  Senate,  said  on  stat- 
ing the  case:  "The  bill  provided  that  it  should  not  be  lawful 
for  any  deputy  postmaster,  in  any  state,  territory,  or  district 
of  the  United  States,  knowingly  to  deliver  to  any  person  what- 
ever, any  pamphlet,  newspaper,  handbill,  or  other  printed  paper 
or  pictorial  representation,  touching  the  subject  of  slavery, 
where,  by  the  laws  of  said  state,  district,  or  territory,  their 
circulation  was  prohibited.  .  .  .  Even  the  Constitution  of  the 
United  States  might  be  prohibited;  and  the  person  who  was 
clothed  with  the  power  to  judge  in  this  delicate  matter  was  one 
of  the  deputy  postmasters."  In  denouncing  that  monstrous 
proposal,  Webster  said  that  "the  bill  conflicted  with  that  pro- 
vision in  the  Constitution  which  prohibited  Congress  from 
passing  any  law  to  abridge  the  freedom  of  speech  or  of  the  press. 
What  was  the  liberty  of  the  press?  he  asked.  It  was  liberty  of 
printing  as  well  as  the  liberty  of  publishing,  in  all  the  ordinary 
modes  of  publication;  and  was  not  the  circulation  of  papers 
through  the  mails  an  ordinary  mode  of  publication?  He  was 
afraid  that  they  were  in  some  danger  of  taking  a  step  in  this 
matter  that  they  might  hereafter  have  cause  to  regret,  by  its 
being  contended  that  whatever  in  this  bill  applies  to  publica- 
tions touching  slavery,  applies  to  other  publications  that  the 
states  might  think  proper  to  prohibit;  and  Congress  might, 
under  this  example,  be  called  upon  to  pass  laws  to  suppress 
the  circulation  of  political,  religious,  or  any  other  description 
of  publications  which  produced  excitement  in  the  states."1 

Webster's  worst  fears  have  been  realized.  By  the  statute 
involved  in  the  case  in  question,  and  others  of  like  character, 
the  mails  of  the  United  States  have  been  put  under  a  congres- 

Hng  result    in  a  judgment    unsup-  to  find  either  authority  or  adequate 

ported  by  an  opinion.  Subsequently  reason  upon  which  to  rest  its  judg- 

Chief  Justice    Fuller    filed    a   very  ment. 

brief  opinion,  which   disclosed  the          l  Benton,    Thirty    Years'    View, 

fact  that  the  Court  had  been  unable  i,  586. 


232 


THE  AMERICAN  CONSTITUTION 


[Ci 


Right  of 
petition. 


Right  to  keep 
and  bear  arms. 


Object  of 
Assize 
of  Arms. 


sional  censorship  that  may  be  extended  to  any  subject  which 
that  body  may  see  fit  to  add  to  its  Index  Expurgatorius.  The 
last  clause  of  Article  I  is  simply  a  restatement  of  that  pro- 
vision of  the  Bill  of  Rights  (1689)  which  provides  "that  it  is 
the  right  of  the  subject  to  petition  the  King,  and  all  commit- 
ments and  prosecutions  for  such  petitioning  are  illegal.'* l 
So  jealous  were  the  Commons  of  the  exercise  of  the  right  that 
in  1701  they  imprisoned  five  of  the  Kentish  petitioners  until 
the  end  of  the  session,  for  praying  the  House  to  attend  to  the 
voice  of  the  people  and  turn  its  loyal  addresses  into  bills  of 
supply.  In  United  States  v.  Cruikshank  2  it  was  held  (i)  that 
the  First  Amendment,  which  prohibits  Congress  from  abridg- 
ing the  right  of  the  people  to  assemble  and  to  petition  the 
Government  for  a  redress  of  grievances,  was  not  intended  to 
limit  the  powers  of  the  state  governments  in  respect  to  their 
own  citizens,  but  to  operate  upon  the  National  Government 
only;  (2)  that  the  right  of  the  people  peaceably  to  assemble 
for  the  purpose  of  petitioning  Congress  for  a  redress  of  griev- 
ances, or  for  anything  else  connected  with  the  powers  or 
duties  of  the  National  Government,  existed  long  before  the 
adoption  of  the  Constitution  as  an  attribute  of  national 
citizenship,  and,  as  such,  is  under  the  protection  of  and  guar- 
anteed by  the  United  States. 

Article  n  provides  that  "a  well  regulated  militia,  being 
necessary  to  the  security  of  a  free  state,  the  right  of  the  people 
to  keep  and  bear  arms,  shall  not  be  infringed."  The  roots  of  this 
Article  strike  down  into  the  past  until  they  reach  the  Assize  of 
Arms3  of  Henry  II  (1181),  whereby  the  old  constitutional 
force  was  reorganized  by  the  duty  being  imposed  upon  every 
free  man,  for  the  defense  of  the  state,  to  provide  himself  with 
arms  according  to  his  means.  The  ancient  landfyrd,  the 
militia  of  the  shire,  survived  the  Norman  Conquest,  and  its 
aid  was  more  than  once  invoked  in  great  emergencies  by  the 
Conqueror  and  his  sons.  The  object  of  Henry 's  Assize  of  Arms 
was  to  reorganize  and  rearm  the  ancient  force  as  a  body  safer 
and  more  trustworthy  for  national  defense  than  the  feudal 

1  The  practice  of  petitioning  on      sented  to  Charles  I  and  to  the  Long 
political    subjects    came    into    use      Parliament, 
during  the  period  of  the  Great  Re-          2  92  U.  S.  542. 
bellion.    Many  petitions  were  pre-          *  Hoveden,  ii,  261;  Benedictus, 

278. 


VIII.]     THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  233 

host.1  According  to  "  The  Federalist "  this  limitation  indicates 
that  the  security  of  liberty  against  the  tyrannical  tendencies  of 
power  is  only  to  be  found  in  the  right  of  the  people  to  keep 
and  bear  arms  with  which  to  resist  oppression.  In  Presser  v.  Presser ». 
Illinois  2  the  Supreme  Court  —  after  holding  that  the  pro-  IUinois- 
vision,  that  "the  right  of  the  people  to  keep  and  bear  arms 
shall  not  be  infringed,"  is  a  limitation  only  on  the  powers  of 
Congress  and  the  National  Government  —  declared  that  in 
view  of  the  fact  that  all  citizens  capable  of  bearing  arms  con- 
stitute the  reserved  military  force  of  the  National  Government 
as  well  as  in  view  of  its  general  powers,  the  states  cannot  pro- 
hibit the  people  from  keeping  and  bearing  arms,  so  as  to  deprive 
the  United  States  of  their  rightful  resource  for  maintaining  the 
public  security. 

Article  in  provides  that  "  no  soldier  shall,  in  time  of  peace,  Billeting  of 
be  quartered  in  any  house,  without  the  consent  of  the  owner,  ^blted  Pr°" 
nor  in  time  of  war  but  in  a  manner  to  be  prescribed  by  law." 
This  prohibition  is  based  on  that  part  of  the  Petition  of  Right 
(7th  June,  1628)  which  provides  that  "  whereas  of  late  great 
companies  of  soldiers  and  mariners  have  been  dispersed  into 
divers  counties  of  the  realm,  and  the  inhabitants  against  their 
will  have  been  compelled  to  receive  them  into  their  houses,  and 
there  to  suffer  them  to  sojourn  against  the  laws  and  custom  of 
this  realm,  and  to  the  great  grievance  and  vexation  of  the 
people."    By  Stat.  31  Car.  II,  c.  I,  it  is  enacted  that  no  officer,  stat.  31 
military  or  civil,  or  other  persons,  shall  quarter  or  billet  any  Car-  n> c- l- 
soldier  upon  any  inhabitant  of  this  realm  without  his  consent, 
and  that  every  such  inhabitant  may  refuse  to  quarter  any 
soldier,   notwithstanding  any  order  whatsoever.     The  pro- 
visions of  that  statute  and  also  of  the  Petition  of  Right  against 
billeting  are  annually  suspended  in  England  by  the  Mutiny 
Act,  which  expressly  gives  permission  to  billet  soldiers  at  inns 
and  victualing-houses. 

Article  iv  provides  that  "the  right  of  the  people  to  be  General 
secure  in  their  persons,  houses,  papers,  and  effects,  against  war.JStsJ- 

f  prohibited. 

unreasonable  searches  and  seizures,  shall  not  be  violated,  and 
no  warrants  shall  issue  but  upon  probable  cause,  supported  by 
oath  or  affirmation,  and  particularly  describing  the  place  to  be 

1  The  Origin  and  Growth  of  the  English  Constitution,  i,  312. 
8  II6U.  8.252. 


234 


THE  AMERICAN  CONSTITUTION 


[CH. 


No.  45  of 
North  Briton. 


Mansfield' 
judgment. 


searched,  and  the  persons  or  things  to  be  seized."  The  motive 
of  this  Article  was  to  embody  in  American  constitutional  law 
the  fruits  of  the  victory  won  in  England  in  1765,  when  what  are 
known  as  general  warrants  were  declared  illegal.  In  the  effort 
to  destroy  the  freedom  of  the  press,  by  a  strained  exercise  of 
the  prerogative  a  general  warrant  was  issued  in  1763  for  the 
discovery  and  apprehension  of  the  authors  and  printers  (not 
named)  of  the  obnoxious  No.  45  of  the  North  Briton,  which 
commented  in  severe  and  offensive  terms  on  the  King's  Speech 
at  the  prorogation  of  Parliament  and  upon  the  unpopular 
Peace  of  Paris  recently  (February  10, 1763)  concluded.1  Forty- 
nine  persons,  including  Wilkes,  were  arrested  under  the  general 
warrant;  and  when  it  was  ascertained  that  Wilkes  was  the 
author,  an  information  for  libel  was  filed  against  him  on  which 
a  verdict  was  obtained.2  In  suits  afterward  brought  against 
the  Under-Secretary  of  State  who  had  issued  the  general  war- 
rant, Wilkes,3  and  Dryden  Leach,  one  of  the  printers  arrested 
on  suspicion,  obtained  verdicts  for  damages.  When  the  matter 
came  before  the  King's  Bench  in  1765,  Lord  Mansfield  and  the 
other  three  judges  pronounced  the  general  warrant  illegal, 
declaring  that  "no  degree  of  antiquity  could  give  sanction  to 
a  usage  bad  in  itself."4  When  in  Boyd  v.  United  States8  an 
attempt  was  made  to  enforce  a  penalty  under  the  customs  acts, 
—  providing  that  the  prisoner  must  produce  the  invoice  in 
court  for  the  inspection  of  the  government  attorney  or  else 
be  taken  to  confess  the  offense,  —  it  was  held  that  such  a  pro- 
vision was  obnoxious  to  the  Article  in  question  because  equi- 
valent to  compulsory  production  of  papers,  and  also  to  a  subse- 
quent Amendment  because  it  compelled  the  accused  to  produce 
evidence  against  himself.  It  was  subsequently  held  in  the  case 
of  Spies  v.  United  States,6  wherein  it  was  claimed  that  in  a 
state  court  the  papers  of  the  accused  had  been  seized  without 
warrant  and  contrary  to  the  Amendment,  that  it  did  not  apply 
because  it  limited  only  the  powers  of  the  Federal  Government 
and  not  of  the  states. 

1  Parl.Hist.,  xv,  1331,  n.;  Lord 
Mahon's   Hist.,  v,  45;   Adolphus's 
Hist.,  i,  1 1 6. 

2  Rex  v.  Wilkes,  4  Burr,  2527, 

2574- 

3  Wilkes  v.  Wood,  19  State  Trials, 

1153- 


4  Leach  v.  Money,  19  State  Trials, 
1001.  Denman's  Brown's  Const. 
Law,  522  seq. 

*  116  U.  S.  616. 

8  123  U.  S.  131. 


VIII.]     THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  235 

Article  v  provides  that  "no  person  shall  be  held  to  answer  Guarantees  of 
for  a  capital,  or  otherwise  infamous  crime,  unless  on  a  present-  la^  pro' 
ment  or  indictment  of  a  grand  jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  militia,  when  in  actual 
service  in  time  of  war  or  in  public  danger ;  nor  shall  any  person 
be  subject  for  the  same  offense  to  be  twice  put  in  jeopardy  of 
life  or  limb ;  nor  shall  be  compelled  in  any  criminal  case  to  be 
a  witness  against  himself;  nor  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law;  nor  shall  private  pro- 
perty be  taken  for  public  use,  without  just  compensation." 
Into  Articles  v,  vi,  and  VII  are  condensed  the  guarantees  of 
due  process  of  law,  springing  from  Article  xxxix  of  the  Great 
Charter  and  from  the  English  jury  system,  grand  and  petit, 
as  that  system  existed  at  the  time  of  the  severance  of  the 
colonies  from  the  mother  country.  Nothing  more  can  be  at- 
tempted than  a  statement  of  the  essence  of  the  judicial  litera- 
ture that  has  grown  up  around  each  Article  since  its  adoption. 
The  purpose  of  the  first  clause  of  Article  v  was  to  perpetuate  Perpetuation 
the  grand  jury  as  an  instrument  for  the  prosecution  of  serious 
crimes  in  the  courts  of  the  United  States.  It  has  been  held  courts; 
that  it  was  not  the  purpose  of  the  due  process  of  law  clause 
of  Article  xiv  to  perpetuate  that  institution  in  the  states.  In 
Hurtado  v.  California1  it  was  said:  "We  are  to  construe  this 
phrase  in  the  Fourteenth  Amendment  by  the  usus  loguendi  of 
the  Constitution  itself.  The  same  words  are  contained  in  the 
Fifth  Amendment.  That  Article  makes  specific  and  express 
provision  for  perpetuating  the  institution  of  the  grand  jury  so 
far  as  it  relates  to  prosecutions  for  the  more  aggravated  crimes, 
under  the  laws  of  the  United  States.  .  .  .  According  to  a  recog- 
nized canon  of  interpretation,  especially  applicable  to  formal 
and  solemn  instruments  of  constitutional  law,  we  are  forbidden 
to  assume,  without  clear  reason  to  the  contrary,  that  any  part 
of  this  most  important  Amendment  is  superfluous.  The  nat- 
ural and  obvious  inference  is,  that  in  the  sense  of  the  Constitu- 
tion 'due  process  of  law'  was  not  meant  or  intended  to  include, 
ex  vi  termini,  the  institution  and  procedure  of  a  grand  jury 
in  any  case.  The  conclusion  is  equally  irresistible  that  when 
the  same  phrase  was  employed  in  the  Fourteenth  Amendment 
to  restrain  the  action  of  the  states,  it  was  in  the  same  sense  and 
1  iioU.  8.516. 


236 


THE  AMERICAN  CONSTITUTION 


[CH. 


but  not  in 
state  courts. 


Exemption 
from  self- 

incrimination. 


"Due  process" 
traced  to 
Magna  Carta. 


with  no  greater  extent;  and  that  if  in  the  adoption  of  that 
Amendment  it  had  been  part  of  its  purpose  to  perpetuate  the 
institution  of  the  grand  jury  in  all  the  states,  it  would  have 
embodied,  as  did  the  Fifth,  express  declarations  to  that  ef- 
fect." For  a  reexamination  of  the  question  at  a  later  day,  see 
Maxwell  v.  Dow.1  Thus  it  appears  that  the  Fifth  Article  is  a 
limitation  upon  the  powers  of  the  National  Government,  while 
the  Fourteenth  is  a  limitation  upon  the  powers  of  the  states.2 
Under  the  Fifth  it  is  necessary  that  the  accused  plead,  or 
be  ordered  to  plead,  or,  in  a  proper  case,  that  a  plea  of  not 
guilty  be  filed  for  him,  before  his  trial  can  rightfully  proceed ; 
and  the  record  of  his  conviction  should  show  distinctly,  and  not 
by  inference  merely,  that  every  step  involved  in  due  process 
of  law,  an  essential  to  a  valid  trial,  was  taken  in  the  trial  court; 
otherwise  the  judgment  will  be  erroneous.3  It  is  also  the  right 
of  the  accused  to  be  present  during  the  whole  trial,  a  right  of 
which  he  cannot  be  deprived  even  with  his  consent.4  The 
clause  which  provides  that  "  no  person  .  .  .  shall  be  compelled 
to  be  a  witness  against  himself"  has  been  recently  considered 
in  Twining  v.  New  Jersey,5  in  which  it  was  held  that  exemp- 
tion from  self-incrimination,  though  secured  as  against  federal 
action  by  Article  v,  is  not  one  of  the  fundamental  rights  of 
national  citizenship,  so  as  ,to  be  included  among  the  privileges 
and  immunities  of  citizens  of  the  United  States  which  the 
states  are  forbidden  by  Article  xiv  to  abridge.  The  very 
learned  and  exhaustive  opinion  delivered  in  that  case  by  Mr. 
Justice  Moody  was  one  of  many  evidences  of  his  growing  fame 
as  a  jurist  at  the  moment  when  ill  health  most  unfortunately 
deprived  the  Court  and  the  country  of  his  valuable  services, 
an  event  lamented  by  every  member  of  the  bar.  The  all  im- 
portant clause  that  "no  person  shall  be  ...  deprived  of  life, 
liberty,  or  property  without  due  process  of  law ' '  was  first  ex- 
pounded in  Murray's  Lessee  v.  Hoboken  Land  and  Improve- 
ment Co.,6  in  which  the  Court,  speaking  through  Mr.  Justice 
Curtis,  said :  "  The  words  '  due  process  of  law '  were  undoubtedly 
intended  to  convey  the  same  meaning  as  the  words  '  by  the  law 

1  176  U.  S.  581.  4  Lewis    v.   United    States,    146 

8  Spies  v.  Illinois,  123  U.  S.  131,  U.  S.  372. 

1 66.  6  211  U.  S.  78. 

1  Grain   v.    United   States,    162  8  18  How.  272. 
U.  S.  625. 


VIII.]     THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  237 

of  the  land/  in  Magna  Carta.  Lord  Coke  in  his  commentary 
on  those  words  (2  Inst.  50)  says  they  mean  due  process  of  law." 
Following  in  the  path  thus  marked  out,  Mr.  Justice  Miller,  in 
Davidson  v.  New  Orleans,1  said:  "The  equivalent  of  the 
phrase  'due  process  of  law/  according  to  Lord  Coke,  is  found 
in  the  words  '  law  of  the  land '  in  the  Great  Charter,  in  connec- 
tion with  the  writ  of  habeas  corpus,  the  trial  by  jury,  and  other 
guaranties  of  the  rights  of  the  subject  against  the  oppression  of 
the  Crown."  An  effort  has  been  heretofore  made  to  demonstrate 
that  these  eminent  justices  fell  into  a  grave  historical  mistake  A  grave 
when  they  thus  assumed  that  the  meaning  of  "due  process  of 
law"  should  be  accepted  by  American  courts  in  the  limited 
sense  in  which  it  was  understood  by  Coke  in  1632,  prior  to  the 
great  Revolutions  of  1640  and  1688  by  which  it  was  given  a 
vastly  wider  significance.  It  was  then  said  that  the  draftsmen 
of  our  first  constitutions  would  have  recoiled  with  horror  at  the 
thought  that  they  were  founding  American  constitutional  law 
upon  the  ancient  English  Constitution  as  it  existed  in  1632 
— with  the  Star  Chamber  and  High  Commission  intact  — and 
not  upon  the  reformed  English  Constitution,  as  Blackstone 
described  it  in  the  first  book  of  his  famous  "  Commentaries," 
put  in  their  present  form  in  I758.2  After  declaring  in  Barren  Barren ». 
v.  Baltimore 3  that  the  final  clause,  "nor  shall  private  property  Baltimore- 
be  taken  for  public  use,  without  just  compensation,"  is  in- 
tended "solely  as  a  limitation  on  the  exercise  of  power  by  the 
Government  of  the  United  States,"  Marshall,  C.  J.,said:  "But 
it  is  universally  understood,  it  is  part  of  the  history  of  the  day, 
that  the  great  revolution  which  established  the  Constitution  of 
the  United  States  was  not  effected  without  immense  opposi- 
tion. Serious  fears  were  extensively  entertained  that  those 
powers  which  the  patriot  statesmen  who  then  watched  over  the 
interests  of  our  country  deemed  essential  to  union,  and  to 
the  attainment  of  those  invaluable  objects  for  which  union  was 
sought,  might  be  exercised  in  a  manner  dangerous  to  liberty. 
In  almost  every  convention  by  which  the  Constitution  was 
adopted,  amendments  to  guard  against  the  abuse  of  power 
were  recommended.  These  amendments  demanded  security 
against  the  apprehended  encroachments  of  the  General  Gov- 
ernment — not  against  those  of  the  local  governments." 
1  96  U.  S.  97.  2  See  above,  p.  78.  »  7  Pet.  243. 


238 


THE  AMERICAN  CONSTITUTION 


ICH. 


Jury  trials  in 
criminal  cases 
safeguarded. 


Trials  must 
be  speedy 
and  public. 


English 
criminal 
trials  prior 
to  civil  war. 


Article  VI  provides  that  "in  all  criminal  prosecutions,  the  ac- 
cused shall  enjoy  the  right  to  a  speedy  and  public  trial,  by  an 
impartial  jury  of  the  state  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been  previously 
ascertained  by  law,  and  to  be  informed  of  the  nature  and  cause 
of  the  accusation ;  to  be  confronted  with  the  witnesses  against 
him;  to  have  compulsory  process  for  obtaining  witnesses  in 
his  favor,  and  to  have  the  assistance  of  counsel  for  his  defense." 
In  the  original  Constitution  (Art.  ill,  Sec.  2,  Clause  3)  it  is  pro- 
vided that  "the  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury;  and  such  trial  shall  be  held  in  the  state 
where  the  said  crimes  shall  have  been  committed;  but  when 
not  committed  within  any  state,  the  trial  shall  be  at  such  place 
or  places  as  the  Congress  may  by  law  have  directed."  By  the 
Fifth  Article,  just  considered,  careful  provision  was  made  as 
to  the  method  of  accusation  by  "  presentment  or  indictment 
of  a  grand  jury,"  provided  the  accused  was  charged  with  "a 
capital,  or  otherwise  infamous  crime."  By  the  Sixth  every 
safeguard  is  provided  for  a  speedy  and  public  trial  by  petit 
juries  of  accusations  thus  made,  including  every  material  de- 
tail of  the  proceedings  as  to  the  accusation,  counsel,  and  wit- 
nesses. In  Mattox  v.  United  States  l  it  was  held  that  the  clause 
providing  that  the  accused  must  be  confronted  with  the  wit- 
nesses against  him  was  not  violated  by  the  use  upon  the  second 
trial  for  the  offense  of  the  copy  of  the  testimony  of  a  dead 
witness  given  upon  the  first  trial  when  the  accused  was  con- 
fronted by  the  witness.  In  Motes  v.  United  States  2  it  was 
held,  however,  that  the  right  of  the  accused  to  be  confronted 
with  witnesses  against  him  is  violated  by  permitting  to  be  read 
at  the  final  trial  a  deposition  or  statement  of  an  absent  witness 
taken  at  an  examination  trial,  when  it  does  not  appear  that 
the  witness  was  absent  at  the  suggestion,  connivance,  or  pro- 
curement of  the  accused,  and  when  it  does  appear  that  his 
absence  was  due  to  the  negligence  of  the  prosecution.  A  great 
authority  on  the  "History  of  the  Criminal  Law  of  England"8 
has  told  us  that  "upon  the  whole  it  may  be  said  that  the 
criminal  trials  of  the  century  preceding  the  civil  war  differed 
from  those  of  our  own  day  in  the  following  important  particu- 


*  156  U.  S.  237. 
8  178  U.  S.  458. 


3  Sir  James  Fitzjames  Stephen, 
i,  350. 


VIIL]     THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  239 

lars:  (i)  The  prisoner  was  kept  in  confinement  more  or  less 
secret  till  his  trial,  and  could  not  prepare  for  his  defense.  He 
was  examined  and  his  examination  was  taken  down.  (2)  He 
had  no  notice  beforehand  of  the  evidence  against  him,  and 
was  compelled  to  defend  himself  as  well  as  he  could  when  the 
evidence,  written  or  oral,  was  produced  on  his  trial.  He  had  no 
counsel  either  before  or  at  the  trial.  (3)  At  the  trial  there  were 
no  rules  of  evidence,  as  we  understand  the  expression.  The 
witnesses  were  not  necessarily  (to  say  the  very  least)  confronted 
with  the  prisoner,  nor  were  the  originals  of  the  documents 
required  to  be  produced.  (4)  The  confessions  of  accomplices 
were  not  only  admitted  against  each  other,  but  were  regarded 
as  specially  cogent  evidence.  (5)  It  does  not  appear  that  the 
prisoner  was  allowed  to  call  witnesses  on  his  own  behalf;  but 
it  matters  little  whether  he  was  or  not ;  as  he  had  no  means  of 
ascertaining  what  evidence  they  would  give,  or  of  procuring 
their  attendance." 1  In  Scotland  no  witnesses  were  allowed  for 
the  prisoner  until  the  eighteenth  century,  nor  in  France  until 
the  Revolution.  After  the  accession  of  the  House  of  Stuart  After  acces- 
England  began  to  mitigate  such  barbarous  practices,  drawn  in 
the  main  from  Roman  law,  which  refused  to  permit  a  party 
accused  in  a  capital  case  to  exculpate  himself  by  the  testimony 
of  witnesses.  Then  it  was  that  the  House  of  Commons  insisted, 
in  a  particular  bill  then  pending,  despite  the  opposition  of  the 
Crown  and  the  Lords,  upon  affirming  the  right,  in  cases  tried 
under  that  Act,  of  witnesses  being  sworn  for,  as  well  as  against, 
the  accused.  By  the  statute  of  7  and  8  Will.  Ill,  c.  3,  the  same 
rule  was  established  in  cases  of  treason  and  felony.  By  that 
statute  as  supplemented  by  7  Anne,  c.  27,  s.  14,  it  was  provided 
that  a  copy  of  the  indictment  against  the  prisoner  charged 
with  high  treason  should  be  delivered  to  him  at  least  five  days 
before  the  trial,  and  a  copy  of  the  panel  of  jurors  two  days  be- 
fore the  trial;  that  he  should  be  entitled  to  process  to  compel 
the  attendance  of  witnesses  to  be  examined  on  oath,  and 
throughout  the  trial  to  the  assistance  of  counsel.2  Not  until  a 
later  time  was  the  right  to  be  represented  by  counsel  extended 
to  all  other  cases.  In  Andersen  v.  Treat,3  it  was  held  that  the 

1  Sir  James  Fitzjames  Stephen,          2  See  The  Origin  and  Growth  oj 
History  of  the  Criminal  Law  of  Eng-      the  Eng.  Const.,  ii,  432-433. 
land,  i,  351-354-  *  172  U.  S.  24. 


240 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Right  of  coun- 
sel to  confer 
with  prisoner. 


Enumeration 
of  rights  of 
accused  in 
Sixth  Amend- 
ment. 


Rule  of  inter- 
pretation. 


Jury  trials  in 
civil  cases 
guaranteed. 


refusal  to  permit  counsel  engaged  by  a  prisoner  to  have  a  con- 
sultation with  him  before  the  district  attorney  had  seen  and 
examined  him  is  not  ground  for  attacking  a  conviction  by 
habeas  corpus,  when  the  prisoner  waived  an  examination  before 
a  commissioner,  and  was  represented  on  the  trial  by  counsel 
assigned  to  him  at  his  own  request,  and  the  statement  made  by 
him  to  the  district  attorney  was  voluntary  and  was'  not  put  in 
evidence,  and  no  objections  were  raised  to  questions  asked  him 
on  the  stand  as  to  what  he  said  on  that  occasion,  and  no  wit- 
nesses were  called  to  contradict  his  answers.  When  in  the  case 
of  Callan  v.  Wilson,1  the  guarantee  of  an  impartial  jury  trial 
was  in  question  the  Court  said :  "  The  enumeration,  in  the  Sixth 
Amendment,  of  the  rights  of  the  accused  in  criminal  prosecu- 
tions is  to  be  taken  as  a  declaration  of  what  those  rules  were, 
and  is  to  be  referred  to  the  anxiety  of  the  people  of  the  states  to 
have  in  the  supreme  law  of  the  land,  and,  so  far  as  the  agencies 
of  the  General  Government  were  concerned,  a  full  and  distinct 
recognition  of  those  rules,  as  involving  the  fundamental  rights 
of  life,  liberty,  and  property.  This  recognition  was  demanded 
and  secured  for  the  benefit  of  all  of  the  people  of  the  United 
States,  as  well  those  permanently  or  temporarily  residing  in 
the  District  of  Columbia,  as  those  residing  or  being  in  the 
several  states."  Special  reference  should  be  made  here  to 
the  weighty  words  of  Mr.  Justice  Brown,  who,  in  construing 
in  Mattox  v.  United  States,  heretofore  cited,  the  provision  that 
the  accused  shall  "be  confronted  with  the  witnesses  against 
him,"  said:  "We  are  bound  to  interpret  the  Constitution  in 
the  light  of  the  law  as  it  existed  at  the  time  it  was  adopted,  not 
as  reaching  out  for  new  guaranties  of  the  rights  of  the  citizen, 
but  as  securing  to  every  individual  such  as  he  already  possessed 
as  a  British  subject  —  such  as  his  ancestors  had  inherited  and 
defended  since  the  days  of  Magna  Carta." 

Article  vii  provides  that  "  in  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the  right  of 
trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a  jury  shall 
be  otherwise  reexamined  in  any  court  of  the  United  States, 
than  according  to  the  rules  of  the  common  law."  The  outcry 
against  the  new  Constitution  for  its  failure  to  provide  satis- 
factory guarantees  of  trial  by  jury  in  criminal  cases  —  a  defect 
1  127  U.  S.  540. 


VIII.]      THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  241 

remedied  by  the  Fifth  and  Sixth  Articles  —  was  repeated  with 
even  greater  emphasis  when  it  was  ascertained  that  as  to  trial 
by  jury  in  civil  cases  there  was  no  guarantee  at  all.  In  the 
absence  of  such  an  assurance,  deep  suspicion  was  expressed 
on  account  of  Article  in,  Sec.  2,  Clause  2,  which  provides  that 
"the  Supreme  Court  shall  have  appellate  jurisdiction,  both 
as  to  law  and  fact,  with  such  exceptions,  and  under  such  regu- 
lations as  the  Congress  shall  make."  We  learn  from  "The  Fed- 
eralist "  that  the  contention  was  made  that  by  virtue  of  that 
"appellate"  power  the  Supreme  Court  could  set  aside  the 
decision  made  by  a  jury  as  to  a  question  of  fact.  "Some  well 
intentioned  men  in  this  state,"  says  Hamilton,  "  deriving  their  Hamilton  in 
notions  from  the  language  and  forms  which  obtain  in  our 
courts,  have  been  induced  to  consider  it  as  an  implied  super- 
sedure  of  the  trial  by  jury,  in  favor  of  the  civil-law  mode  of 
trial  which  prevails  in  our  courts  of  admiralty,  probate,  and 
chancery.  A  technical  sense  has  been  affixed  to  the  term 
'appellate/  which,  in  our  parlance,  is  commonly  used  in  refer- 
ence to  appeals  in  the  course  of  the  civil  law. "  1  To  quiet 
such  apprehensions  the  article  in  question  was  adopted,  which, 
after  clearly  excluding  by  implication  suits  in  equity,  expressly 
provides  that  all  suits  at  common  law,  over  a  certain  amount, 
shall  be  tried  by  jury,  "and  that  no  fact  tried  by  a  jury  shall  be 
otherwise  reexamined  in  any  court  of  the  United  States,  than 
according  to  the  rules  of  the  common  law."  In  Elmore  v. 
Grymes,2  the  Court  held  that  the  plaintiff  had  a  right  to  have  Right  to  have 
his  cause  submitted  to  a  jury,  after  a  peremptory  nonsuit 
against  his  will  had  been  ordered  in  the  Circuit  Court ;  and  the 
same  general  doctrine  was  applied  in  Parsons  v .  Bedford,3  and 
in  Castle  v.  Bullard.4  In  Baylis  v.  Insurance  Company  5  it  was 
held  that  a  court  cannot  substitute  itself  for  a  jury  and  pass 
upon  the  effect  of  the  evidence  and  render  judgment  thereon, 
without  an  express  waiver  of  the  right  of  trial  by  jury.  In 
McElrath  v.  United  States  6  it  was  held  that  a  suit  against  the 
Government  could  be  tried  in  the  Court  of  Claims  without  a 
jury,  because  such  a  suit  is  not  one  at  common  law  within  the 

1  The  Federalist  (Ford  ed.),  no.          4  23  How.  172. 
Ixxxii,  pp.  546-547.  6  113  U.  S.  316. 

2  I  Pet.  469.  e  102  U.  S.  426. 
»  3  Pet.  433. 


242 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Opinion  of 
judge  as  to 
weight  of 
evidence. 


Limit 
to  hostile 
comments. 


Excessive 
bail  and  fines 
prohibited. 


meaning  of  the  Amendment;  and  such  was  the  distinction 
drawn  in  Guthrie  National  Bank  v.  Guthrie.1  When  we  con- 
sider how  large  the  scope  of  the  English  judges  has  always 
been  in  expressing  their  views  on  the  facts  to  the  jury,  and  in 
directing  verdicts  according  to  their  opinions,  it  is  not  strange 
that  in  the  case  of  Allis  v.  United  States,2  a  criminal  case,  it 
should  have  been  held  that  the  judge  may  express  his  opinion 
as  to  the  weight  of  the  evidence,  and  may  recall  the  jury  after 
deliberation  for  a  time  to  ascertain  their  difficulties,  and  to 
make  proper  efforts  to  assist  them  in  their  conclusions.  In  the 
earlier  case  of  Simmons  v.  United  States,3  the  Court  had  said: 
"  It  is  so  well  settled,  by  a  long  series  of  decisions  of  this  Court, 
that  the  judge  presiding  at  a  trial,  civil  or  criminal,  in  any 
court  of  the  United  States,  is  authorized,  whenever  he  thinks 
it  well  to  assist  the  jury  in  arriving  at  a  just  conclusion,  to 
express  to  them  his  opinion  upon  the  questions  of  fact  which  he 
submits  to  their  determination."  It  was  however  held  in  Hicks 
v.  United  States,4  that  the  wise  and  humane  provision  of  the 
law  that  "  the  person  charged  shall,  at  his  own  request,  but  not 
otherwise,  be  a  competent  witness,"  should  not  be  defeated 
by  hostile  comments  of  the  trial  judge  on  the  testimony  of  the 
accused;  and  in  Allison  v.  United  States,5  a  new  trial  was 
granted  because  the  trial  judge  had  attempted  to  charge  the 
jury  as  to  the  weight  to  be  attributed  to  the  evidence  given 
by  the  accused  in  his  own  behalf.  But  such  conclusions  are 
not  in  conflict  with  Randall  v.  B.  &  O.  R.  R.  Co.,6  wherein  the 
general  rule  was  laid  down  that  when  the  evidence  given  at 
the  trial,  with  all  the  inferences  that  the  jury  could  justifiably 
draw  from  it,  is  insufficient  to  support  a  verdict  for  the  plain- 
tiff, so  that  a  verdict,  if  returned,  must  be  set  aside,  the  court 
may  direct  a  verdict  for  the  defendant. 

Article  vm  provides  that  "excessive  bail  shall  not  be  re- 
quired, nor  excessive  fines  imposed,  nor  cruel  and  unusual 
punishments  inflicted."  In  order  to  restrain  the  King  from 
the  wanton  or  tyrannical  imposition  of  amercements,  —  the 
pecuniary  fines  laid  on  those  who  had  offended  against  the 
royal  prerogative,  —  it  was  provided  by  the  Great  Charter 


1  173  U.  S.  528. 

2  155  U.  S.  123. 
»  142  U.  S.  155. 


4  150  U.  S.  442. 
6  160  U.  S.  203. 
6  109  U.  S.  478. 


VIII.]     THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  243 

that  the  freeman  shall  only  be  amerced  according  to  his  fault, 
saving  to  him  the  means  of  maintenance;  and  in  like  manner 
the  merchant,  saving  to  him  his  merchandise;  and  also  the 
villein,  except  he  be  the  King's  villein,  saving  to  him  his  wain- 
age.  No  amercements  shall  be  assessed  in  any  case  but  by 
the  oaths  of  honest  and  lawful  men  of  the  neighborhood.1  In 
the  Bill  of  Rights  it  is  provided  "that  excessive  bail  ought 
not  to  be  required,  nor  excessive  fines  imposed;  nor  cruel  and 
unusual  punishments  inflicted."  Thus  it  appears  that  the 
article  in  question  is  simply  a  copy  of  Article  10  of  the  Bill  Article  10  of 
of  Rights,  which  rests  in  part  upon  chapters  20,  21,  22  of  the 
Great  Charter.  The  Supreme  Court  has  firmly  resisted  all 
attempts  to  construe  it  as  a  limitation  upon  the  power  of  the 
states.  The  conclusion  first  announced  in  Pervear  v.  Massa- 
chusetts 2  was  repeated  in  Ex  parte  Kemmler,3  when  the  Electrocution 
attempt  was  made  to  prevent  electrocution  as  a  cruel  and 
unusual  punishment.  It  was  therein  held  that  as  the  article  in 
question  was  not  designed  to  interfere  with  the  power  of  the 
state  to  protect  the  lives,  liberties,  and  property  of  its  citizens, 
and  to  promote  their  health,  peace,  morals,  education,  and 
good  order,  a  statute  inflicting  the  punishment  of  death  by 
electricity  is  within  the  legitimate  sphere  of  state  legislation.  t 

With  this  article  ends  that  part  of  our  national  Bill  of 
Rights  which  is  drawn  from  the  English  system.  Even  a  casual 
inspection  of  the  material  thus  derived  will  convince  any  one 
familiar  with  the  history  of  that  system  that,  after  excepting 
the  due  process  of  law  clause  derived  from  the  Great  Charter, 
nearly  all  of  the  remaining  provisions  are  taken  from  the 
modern  English  Constitution  as  reformed  and  invigorated  Modern  Eng- 
during  the  Revolutions  of  1640  and  1688.  In  other  words,  that  n.sh  Constitu- 
body  of  new  constitutional  law  evolved  in  England  between 
1640  and  1776,  first  formulated  in  the  bills  of  rights  of  the 
original  state  constitutions,  finally  reappeared  in  the  first 
eight  articles  of  amendment  to  the  existing  federal  system. 
If  anything  in  the  history  of  any  country  is  certain,  it  is  that 
the  essence  of  the  English  constitutional  system  as  reformed 
by  the  Revolutions  of  1640  and  1688,  and  as  defined  byjBlack- 

1  Chaps.  20,   21,  22.    Upon  the          2  5  Wall.  475. 
whole  subject  of  amercements,  see          *  136  U.  S.  436. 
Reeves,  Hist  of  Eng.  Law,  ii,  35-39. 


244 


THE  AMERICAN  CONSTITUTION 


[CH. 


An  act  of 
over-caution. 


Contention 
that  bill  of 
rights  was 
unnecessary. 


Maxim  of 
exprcssio  unius. 


stone  in  1758,  passed  into  our  first  state  constitutions,  which 
were  the  filter-beds  through  which  the  essence  of  the  reformed 
system  passed  into  the  existing  Constitution  of  the  United 
States. 

Article  ix  provides  that  "the  enumeration  in  the  Constitu- 
tion, of  certain  rights,  shall  not  be  construed  to  deny  or  dis- 
parage others  retained  by  the  people."  In  that  provision  over- 
caution  reached  its  climax  in  a  declaration  made  redundant  by 
the  eight  preceding  articles  of  amendment,  each  of  which  had 
proclaimed  in  substance  the  same  thing.  Or  to  put  the  matter 
in  another  form,  Article  ix  is  a  brief  and  dogmatic  answer  to 
the  contention  that  no  bill  of  rights  was  necessary  as  a  preface 
to  a  constitution  creating  a  government  of  limited  and  enumer- 
ated powers.  That  contention,  as  stated  by  Hamilton,  was 
this:  "I  go  further,  and  affirm  that  bills  of  rights,  in  the 
sense  and  to  the  extent  in  which  they  are  contended  for,  are 
not  only  unnecessary  in  the  proposed  Constitution,  but  would 
even  be  dangerous.  They  would  contain  various  exceptions  to 
powers  not  granted ;  and,  on  this  very  account,  would  afford 
a  colorable  pretext  to  claim  more  than  were  granted.  For 
why  declare  that  things  shall  not  be  done  which  there  is  no 
power  to  do?  Why,  for  instance,  should  it  be  said  that  liberty 
of  the  press  shall  not  be  restrained,  when  no  power  is  given  by 
which  restrictions  may  be  imposed?  I  will  not  contend  that 
such  a  provision  would  confer  a  regulating  power ;  but  it  is  evi- 
dent that  it  would  furnish,  to  men  disposed  to  usurp,  a  plausible 
pretense  for  claiming  that  power.  "*  Prior  to  that  he  had  said : 
"But  a  minute  detail  of  particular  rights  is  certainly  far  less 
applicable  to  a  Constitution  like  that  under  consideration, 
which  is  merely  intended  to  regulate  the  general  political  inter- 
ests of  the  nation,  than  to  a  Constitution  which  has  the  regula- 
tion of  every  species  of  personal  and  private  concerns."  To 
such  reasoning  the  counterblast  of  the  over-cautious  was  that 
the  maxim  expressio  unius  exclusio  est  alter  ius1  good  enough 
in  its  proper  place,  might  be  improperly  applied  to  the  rights 
of  the  people  in  reference  to  the  powers  of  government  created 
by  the  new  Constitution.  As  Story  (sec.  453)  has  well  expressed 
it:  "This  clause  was  manifestly  introduced  to  prevent  any 
perverse  or  ingenious  misapprehension  of  the  well  known 
1  The  Federalist  (Ford  ed.),  no.  Ixxxiv,  pp.  573~574. 


VIII.]     THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  245 

maxim,  that  an  affirmation  in  particular  cases  implies  a  nega- 
tion in  all  others ;  and  e  converse,  that  a  negation  in  particular 
cases  implies  an  affirmation  in  all  others.  The  maxim,  rightly 
understood,  is  perfectly  sound  and  safe;  but  it  has  often  been 
strangely  forced  from  its  natural  meaning  into  the  support  of 
the  most  dangerous  political  heresies.  The  amendment  was 
undoubtedly  suggested  by  the  reasoning  of '  The  Federalist '  on 
the  subject  of  a  general  bill  of  rights." 

Article  x  provides  that  "the  powers  not  delegated  to  the  Reserved 
United  States  by  the  Constitution,  nor  prohibited  by  it  to  the 
states,  are  reserved  to  the  states  respectively,  or  to  the  people." 
As  explained  already,  Pelatiah  Webster,  clearly  foreseeing  the 
difficulties  certain  to  arise  on  that  subject,  embodied  in  his 
plan  an  expository  statement  so  luminous,  so  comprehensive, 
that  its  adoption  would  have  rendered  entirely  unnecessary 
both  the  ninth  and  tenth  articles  of  amendment.1  Without 
repeating  that  statement,  heretofore  quoted  at  length,  suffice 
it  to  say  that  the  argument  that  it  is  impossible  to  confine 
a  government  to  the  exercise  of  express  powers,  and  that  there 
must  be  powers  necessarily  implied,  was  met  in  Fairfax  v. 
Hunter,2  by  the  declaration  that  "the  Government,  then,  of 
the  United  States  can  claim  no  powers  which  are  not  granted 
to  it  by  the  Constitution,  and  the  powers  actually  granted 
must  be  such  as  are  expressly  given,  or  given  by  necessary  im- 
plication." In  McCulloch  v.  Maryland,3  Marshall,  C.  J.,  ex-  Marshall  on 
hausted  the  subject  when  he  said:  "A  constitution,  to  contain 
an  accurate  detail  of  all  the  subdivisions  of  which  its  great 
powers  will  admit,  and  of  all  the  means  by  which  they  may  be 
carried  into  execution,  would  partake  of  the  perplexity  of  a 
legal  code,  and  could  scarcely  be  embraced  by  the  human  mind. 
.  .  .  The  Government  which  has  a  right  to  do  an  act,  and  has 
imposed  on  it  the  duty  of  performing  that  act,  must,  according 
to  the  dictates  of  reason,  be  allowed  to  select  the  means;  and 
those  who  contend  that  it  may  not  select  any  appropriate  means, 
that  one  particular  mode  of  effecting  the  object  is  excepted, 
take  upon  themselves  the  burden  of  establishing  that  excep- 
tion. .  .  .  Let  the  end  be  legitimate,  let  it  be  within  the  scope 
of  the  Constitution,  and  all  means  which  are  appropriate,  which 

1  See  above,  p.  154  sq.  *  4  Wheat.  316. 

2  I  Wheat.  326. 


246 


THE  AMERICAN  CONSTITUTION 


[Cn. 


States  pro- 
tected against 
certain  suits. 


Chisholm  ». 
Georgia  forced 
Article  xi. 


Hollingsworth 
v.  Virginia. 


are  plainly  adapted  to  that  end,  which  are  not  prohibited, 
but  consist  with  the  spirit  and  letter  of  the  Constitution,  are 
constitutional." 

Article  xi  provides  that  "the  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in  law  or 
equity,  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  state,  or  by  citizens  or  subjects 
of  any  foreign  state."  That  article,  proposed  to  the  legisla- 
tures of  the  several  states  by  the  Third  Congress  on  March  5, 
1794,  was  declared  ratified  by  the  legislatures  of  three  fourths 
of  the  states  in  a  message  from  the  President  to  Congress  dated 
January  8,  1798.  Thus  it  appears  that  eight  years  inter- 
vened between  the  adoption  of  the  first  ten  articles  of  amend- 
ment and  the  eleventh.  During  that  interval  the  necessity  for 
such  an  amendment  was  disclosed  by  the  case  of  Chisholm 
v.  Georgia1  (1793),  the  third  case  entered  on  the  "original 
docket"  of  the  Supreme  Court,  an  action  of  assumpsit,  in 
which  the  following  questions  arose:  "i.  Can  the  State  of 
Georgia,  being  one  of  the  United  States  of  America,  be  made 
a  party  defendant  in  any  case  in  the  Supreme  Court  of  the 
United  States,  at  the  suit  of  a  private  citizen,  even  though  he 
himself  is,  and  his  testator  was,  a  citizen  of  the  State  of  South 
Carolina?  2.  If  the  State  of  Georgia  can  be  made  a  party  de- 
fendant in  certain  cases,  does  an  action  of  assumpsit  lie  against 
her?  3.  Is  the  service  of  the  summons  upon  the  Governor  and 
Attorney-General  of  the  State  of  Georgia  a  competent  service? 
4.  By  what  process  ought  the  appearance  of  the  State  of 
Georgia  to  be  enforced?"  After  preliminary  action  in  1793, 
"in  February  term,  1794,  judgment  was  rendered  for  the 
plaintiff,  and  a  writ  of  inquiry  awarded.  The  writ,  however, 
was  not  sued  out  and  executed,  so  that  this  cause,  and  all 
other  suits  against  states,  were  swept  at  once  from  the  records 
of  the  Court  by  the  amendment  to  the  Federal  Constitution, 
agreeably  to  the  unanimous  determination  of  the  judges  in 
Hollingsworth  v..  Virginia,  argued  at  February  term,  1789." 
In  that  case  the  Court  held  "that  the  amendment  being  consti- 
tutionally adopted,  there  could  not  be  exercised  any  jurisdic- 
tion in  any  case,  past  or  future,  in  which  a  state  was  sued  by 
the  citizens  of  another  state,  or  by  citizens  or  subjects  of  any 

1  2  Dall.  419. 


VIII.]      THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  247 

foreign  state."1  With  the  insertion  of  the  words  "be  construed 
to,"  not  in  the  Amendment  as  originally  proposed,  it  became 
possible  to  give  to  the  Amendment  such  a  retroactive  effect 
as  nullified  the  result  announced  in  Chisholm  v.  Georgia.  For 
a  more  extended  view,  see  Cohens  v.  Virginia;2  Bank  of  the 
U.  S.  v.  Planters'  Bank;3  New  Hampshire  v.  Louisiana  and 
New  Yorkz;.  Louisiana;4  Re  Ayers.5  The  prohibitions  of  the  Suit  by 
article  in  question  do  not  protect  a  state  against  a  suit  by  an- 
other  state,  or,  it  would  seem,  against  a  suit  by  a  foreign  sover- 
eign. Mr.  Justice  Curtis  once  said  that  "a  foreign  citizen  or 
subject  cannot  sue  a  state;  but  a  foreign  sovereign,  as,  for  in- 
stance, the  Queen  of  England,  may  bring  a  suit  against  the 
State  of  Massachusetts,  or  any  other  state  in  the  Union,  in 
the  Supreme  Court  of  the  United  States."  6 

Article  xn  provides  that  "the  electors  shall  meet  in  their  Electoral 
respective  states,  and  vote  by  ballot  for  President  and  Vice- 
President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of 
the  same  state  with  themselves ;  they  shall  name  in  their  bal- 
lots the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President,  and  they  shall  make 
distinct  lists  of  all  persons  voted  for  as  President,  and  of  all 
persons  voted  for  as  Vice-President,  and  of  the  number  of  votes 
for  each,  which  lists  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  the  Government  of  the  United  States, 
directed  to  the  President  of  the  Senate;  the  President  of  the 
Senate  shall,  in  presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  certificates  and  the  votes  shall  then  be 
counted;  the  person  having  the  greatest  number  of  votes  for 
President,  shall  be  the  President,  if  such  number  be  a  majority 
of  the  whole  number  of  electors  appointed;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the  highest 
numbers  not  exceeding  three  on  the  list  of  those  voted  for  as 
President,  the  House  of  Representatives  shall  choose  immedi- 
ately, by  ballot,  the  President.  But  in  choosing  the  President, 
the  votes  shall  be  taken  by  states,  the  representation  from  each 
state  having  one  vote ;  a  quorum  for  this  purpose  shall  consist 

3  Ball.  382.  6  Cf.  Curtis,  Jurisdiction  of  the 

6  Wheat.  406.  United  States  Supreme  Court  (Har- 

12  Pet.  731.  vard  Lectures,  Merwin  ed.),  citing 

108  U.  S.  89.  Memoir,  etc.,  of  Judge  Curtis,  i,  282. 
123  U.  S.  489. 


248 


THE  AMERICAN  CONSTITUTION 


[Ci 


Menacing 
conditions 
arising  out 
of  election  of 
1800. 


Election  by 
the  House. 


of  a  member  or  members  from  two  thirds  of  the  states,  and 
a  majority  of  all  the  states  shall  be  necessary  to  a  choice.  And 
if  the  House  of  Representatives  shall  not  choose  a  President 
whenever  the  right  of  choice  shall  devolve  upon  them,  before 
the  fourth  day  of  March  next  following,  then  the  Vice-President 
shall  act  as  President,  as  in  the  case  of  the  death  or  other  con- 
stitutional disability  of  the  President.  The  person  having  the 
greatest  number  of  votes  as  Vice-President,  shall  be  the  Vice- 
President,  if  such  number  be  a  majority  of  the  whole  number 
of  electors  appointed,  and  if  no  person  have  a  majority,  then 
from  the  two  highest  numbers  on  the  list,  the  Senate  shall 
choose  the  Vice-President ;  a  quorum  for  the  purpose  shall  con- 
sist of  two  thirds  of  the  whole  number  of  Senators,  and  a  major- 
ity of  the  whole  number  shall  be  necessary  to  a  choice.  But 
no  person  constitutionally  ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  United  States." 
That  article,  proposed  to  the  legislatures  of  the  several  states 
by  the  Eighth  Congress,  on  December  12,  1803,  in  lieu  of  the 
original  third  paragraph  of  the  first  section  of  the  Second 
Article,  was  declared  to  have  been  ratified  by  the  legislatures 
of  three  fourths  of  the  states  in  a  proclamation  of  the  Secretary 
of  State,  dated  September  25,  1804. 

Thus  it  appears  that  nearly  seven  years  intervened  between 
the  adoption  of  the  Eleventh  and  Twelfth  Articles  of  amend- 
ment. During  that  interval  the  necessity  for  the  last-named 
was  disclosed  by  the  menacing  condition  of  things  arising  out 
of  the  presidential  election  of  1800  in  which  Jefferson  and  Burr 
were  voted  for  by  the  same  political  party,  each  receiving 
an  equal  number  of  electoral  votes,  —  seventy-three  against 
sixty-five  for  Adams,  sixty-four  for  Pinckney,  and  twenty-one 
for  Jay.  Under  the  Constitution  as  it  then  stood,  President  and 
Vice-President  could  not  be  separately  designated  on  electoral 
tickets.  As  party  spirit  had  prompted  seventy-three  of  the 
electors  to  vote  for  the  same  two  men,  these  two  were  tied  for 
the  first  place.  There  being  no  choice,  the  election  went  to 
the  House  of  Representatives  under  the  provision  of  the 
original  Constitution  declaring  that  when  two  persons  have  an 
equal  vote,  and  each  has  a  majority  over  all,  the  House  should 
choose  one  of  them  as  President.  The  House  had  a  Federalist 
majority,  but,  by  the  equality  of  votes  between  Jefferson  and 


VIII.]     THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  249 

Burr,  it  was  forced  constitutionally  to  choose  between  two 
Republicans.  Under  such  conditions  the  fear  was  that  there 
would  be  no  election,  and  thus  an  interregnum  which  might 
disrupt  the  Union.  Finally  on  the  26th  ballot  by  states,  five 
Federalists  from  South  Carolina,  four  from  Maryland,  one 
from  Vermont,  and  one  from  Delaware  did  not  vote,  thus  en- 
abling the  Republican  members  from  Vermont  and  Maryland 
to  cast  the  votes  of  those  states  for  Jefferson.  In  that  way  by 
the  votes  of  ten  states  he  was  elected  President,  Burr  becom- 
ing Vice-President.  The  result  of  that  crisis  was  the  article  in 
question  which  directs  each  elector  to  vote  for  President  and 
Vice-President  as  such. 

Into  the  Twelfth  Amendment  passed  that  clause  of  the  Right 
original  Constitution  (Art.  II,  Sec.  I ,  Par.  3)  which  provides  that  ^eSS 
"the  President  of  the  Senate  shall,  in  the  presence  of  the  votes. 
Senate  and  House  of  Representatives,  open  all  the  [electoral] 
certificates,  and  the  votes  shall  then  be  counted."  When  a 
conflict  arose  between  Hayes  and  Tilden,  the  opposing  pre- 
sidential candidates  in  the  election  of  1876,  a  majority  of  the 
Senate  was  favorable  to  the  former,  a  majority  of  the  House  was 
favorable  to  the  latter.  The  friends  of  the  former  claimed  that 
the  power  to  count  the  votes  was  vested  in  the  President  of 
the  Senate,  the  House  and  Senate  being  mere  spectators.  The 
friends  of  the  latter  contended  that  the  President  of  the  Senate 
could  only  act  ministerially;  that  the  presence  of  the  two 
Houses  made  them  the  controlling  supervisors  of  his  acts ;  that 
the  real  power  to  count  the  votes  was  vested  in  the  two  Houses 
acting  concurrently.  That  manifestly  sound  view  was  strength- 
ened by  the  history  of  the  previous  conduct  of  the  two  Houses 
in  1793,  1797,  and  1800,  when  the  President  of  the  Senate  had  Precedents  of 
simply  exercised  the  ministerial  function  of  opening  the  certi-  I793, 1797, 
ficates  and  laying  them  before  the  two  Houses.  The  friends 
of  the  latter  also  insisted  that  Congress  should  continue  the 
practice  followed  since  1865,  which  was  that  no  vote  objected 
to  should  be  counted  except  by  the  concurrence  of  both  Houses. 
As  the  House  was  strongly  Democratic,  the  throwing-out  of  the 
vote  of  one  state  meant  the  election  of  Tilden.  In  the  presence 
of  such  a  crisis  Congress,  in  order  to  break  the  deadlock  by 
a  compromise,  passed  "The  Electoral  Commission  Act,"  under 
which  the  disputed  electoral  certificates  were  considered  and  de-  Jan.  29, 1877. 


250 


THE  AMERICAN  CONSTITUTION 


[CH. 


Electoral 
Count  Act, 
February  3, 
1887. 


Survivors  at 
end  of  con- 
structive 
period. 


cided  upon  by  the  Electoral  Commission,  subject  to  be  set  aside 
by  the  concurrent  vote  of  the  two  Houses.  While  the  constitu- 
tionality of  the  Act  was  gravely  doubted,  it  served  the  purpose 
for  which  it  was  intended.  The  Commission  created  by  it 
rescued  the  country  from  a  real  peril  by  a  party  vote  of  eight 
to  seven  in  favor  of  Hayes.  As  a  concurrent  vote  of  the  two 
Houses  could  never  be  obtained,  the  decisions  of  the  abnormal 
tribunal  as  to  the  disputed  certificates  remained  unreversed. 
In  the  hope  of  preventing  the  intervention  of  such  a  tribunal 
in  the  future,  the  Electoral  Count  Act  was  approved  February 
3,  1887,  which  provides  that  the  President  of  the  Senate  shall 
open  the  electoral  certificates  in  the  presence  of  both  Houses, 
and  hand  them  to  the  tellers,  two  from  each  House,  who  are  to 
read  them  aloud  and  record  the  votes,  —  the  purpose  being  to 
throw  upon  each  state,  so  far  as  possible,  the  responsibility  of 
determining  how  its  own  presidential  vote  has  been  cast.  The 
effect  of  that  Act,  when  considered  in  connection  with  the  Elect- 
oral Commission  Act,  should  be  to  annihilate  the  monstrous 
claim  that  the  President  of  the  Senate  is  vested  with  the  power 
to  count  the  electoral  vote  with  the  two  Houses  standing  by  as 
impotent  spectators.  The  ultimate  power  is  certainly  vested 
in  the  two  Houses  acting  concurrently;  as  supervisors  of  the 
ministerial  acts  of  the  President  of  the  Senate,  they  are  the 
guardians  of  the  count  and  the  arbiters  of  the  final  result.1 

With  the  ratification  of  the  Twelfth  Amendment  the  construc- 
tive work  of  the  founders  of  the  Republic  drew  to  a  close.  By 
that  time  Washington,  Pelatiah  Webster,  Franklin,  Hamilton, 
John  Rutledge,  James  Wilson,  George  Mason,  Roger  Sher- 
man, John  Blair,  and  Robert  Yates  had  passed  away;  while 
Jefferson,  John  Adams,  Madison,  Marshall,  Charles  Pinckney, 
Oliver  Ellsworth,  Elbridge  Gerry,  Rufus  King,  Edmund  Ran- 
dolph, Robert  Morris,  Gouverneur  Morris,  John  Langdon, 
George  Wythe,  and  Richard  Dobbs  Spaight  still  remained. 
Not  one  of  that  number,  however,  survived  the  sixty-one  years 
destined  to  pass  by  before  the  ratification  of  the  Thirteenth 
Article  of  Amendment  on  December  18, 1865.  It  is  hard  to  pass 
from  this  constructive  epoch  whose  close  is  marked  by  the  rati- 
fication of  the  Twelfth  Amendment  without  a  word  as  to  the 


1  For  the  best  statement  of  the 
subject  as  a  whole,  see  Johnston, 


American  Political  History,  part  ii, 
PP-  508-555. 


VIII.]     THE  FIRST  TWELVE  ARTICLES  OF  AMENDMENT  251 

tragic  fate  of  one  whose  brilliant  and  useful  life  was  cut  short  by 
a  deadly  spirit  of  revenge,  the  outcome  no  doubt  of  the  bitter- 
ness and  disappointment  incident  to  the  political  contest  in 
which  the  Amendment  was  born.  After  the  struggle  for  the  Hamilton. 
Presidency  between  Jefferson  and  Burr  had  passed  into  the 
House  of  Representatives,  Hamilton,  let  it  be  said  to  his  honor, 
earnestly  opposed  those  Federalists  who  resolved  to  eliminate 
the  abler  Jefferson  by  casting  their  votes  for  Burr.  Finally,  by 
the  withdrawal  of  Federalist  votes,  the  battle  was  lost  to  Burr. 
The  flame  thus  lighted  burned  afresh  when,  through  the  efforts 
of  Hamilton,  Burr  was  defeated  in  1804  as  a  candidate  for  the 
office  of  Governor  of  New  York.  Then  it  was  that  he  sought 
and  found  an  excuse  for  the  quarrel  which  resulted  in  the  duel 
in  which  Hamilton  fell  on  July  1 1,  1804,  a  little  more  than  two 
months  before  the  Twelfth  Amendment  became  a  part  of  the 
fundamental  law.  The  subsequent  trial  of  Burr  for  treason  in  Trial  of  Burr 
1 807,  before  Marshall,  Chief  Justice,  and  Griffin,  District  Judge,  £ 
in  the  Circuit  Court  of  the  United  States  at  Richmond,  when 
taken  in  connection  with  the  case  of  Bollman  and  Swartwout, 
growing  out  of  the  Burr  conspiracy,  gave  rise  to  opinions 
delivered  by  the  Supreme  Court,  and  by  Marshall,  C.  J., 
sitting  apart  from  it  in  the  Circuit  Court,  that  constitute  the 
foundation,  in  fact  almost  the  entire  body  of  the  American  law 
of  treason.1  In  order  to  abolish  the  law  of  constructive  treason2  Constructive 
as  it  existed  in  England,  the  Constitution  (Art.  in,  Sec.  3)  pro-  polished. 
vides  that  "treason  against  the  United  States  shall  consist 
only  in  levying  war  against  them,  or  in  adhering  to  their  ene- 
mies, giving  them  aid  and  comfort.  No  person  shall  be  con- 
victed of  treason  unless  on  the  testimony  of  two  witnesses 
to  the  same  overt  act,  or  on  confession  in  open  court."  After 
prolonged  argument  in  Burr's  case  by  a  brilliant  array  of  coun- 
sel, the  Chief  Justice  delivered  his  opinion  on  August  31,  the 
primary  purpose  of  which  was  to  demonstrate  that  only  those 
who  had  done  some  act  or  taken  some  part  in  the  accomplish- 
ment of  the  overt  act  of  treason  charged  in  the  indictment  were 
guilty  of  the  crime  as  defined  in  the  Constitution.  Certain  acts 

1  For  an  excellent  presentation  of  Constitutional  Decisions,  Annotated, 

"the  American    law    of    treason,"  51-165. 

with  the  text  of  the  cases  referred          2  Cf.    Taylor,    The    Origin    and 

to,  see  Dillon's  Marshall's  Complete  Growth  of  the  Eng.  Const.,  i,  582. 


252 


Oneness  of 
English  and 
American  con- 
stitutional 
law. 


THE  AMERICAN  CONSTITUTION 

which  were  supposed  to  amount  to  treason  having  been  proved, 
evidence  was  offered  for  the  purpose  of  connecting  Colonel 
Burr  with  those  who  committed  these  acts,  he  having  been  at 
a  great  distance  from  the  scene  of  action,  in  another  federal 
district  and  state.  Nothing  could  more  vividly  illustrate  the 
oneness  of  English  and  American  constitutional  law  than  the 
following  paragraph  in  which  the  great  Chief  Justice  denned 
the  meaning,  in  both  systems,  of  the  term  "levying  war." 
He  said:  "But  the  term  is  not  for  the  first  time  applied  to 
treason  by  the  Constitution  of  the  United  States.  It  is  a  tech- 
nical term.  It  is  used  in  a  very  old  statute  of  that  country 
whose  language  is  our  language,  and  whose  laws  form  the  sub- 
stratum of  our  laws.  It  is  scarcely  conceivable  that  the  term 
was  not  employed  by  the  framers  of  our  Constitution  in  the 
sense  which  had  been  affixed  to  it  by  those  from  whom  we  bor- 
rowed it.  So  far  as  the  meaning  of  any  terms,  particularly 
terms  of  art,  is  completely  ascertained,  those  by  whom  they 
are  employed  must  be  considered  as  employing  them  in  that 
ascertained  meaning,  unless  the  contrary  be  proved  by  the 
context.  It  is  therefore  reasonable  to  suppose,  unless  it  be 
incompatible  with  other  expressions  of  the  Constitution,  that 
the  term  '  levying  war '  is  used  in  that  instrument  in  the  same 
sense  in  which  it  was  understood  in  England  and  in  this 
country  to  have  been  used  in  the  statute  of  twenty-fifth  of 
Edward  III,  from  which  it  was  borrowed." 1 

1  U.  S.  v.  Burr,  4  Cranch,  470. 


CHAPTER  IX 

AFRICAN   SLAVERY  AND   ITS  CONSEQUENCES 

THE  deadly  original  sin  of  this  Republic  was  African  slavery,  Slavery  in  all 
which  had  crept  into  all  the  colonies  prior  to  the  Revolution.  p^ortoThe 
Finally  in  1789  the  North  and  the  South  covenanted  together  Revolution. 
in  what  are  known  as  the  "compromises  of  the  Constitution" 
to  perpetuate  it  by  law  forever.  After  that  fateful  compact  had 
been  signed  a  great  moral  revolt  took  place  in  the  conscience 
of  the  world  which  ultimately  destroyed  the  institution  in  this 
country  at  the  end  of  a  prolonged  civil  war  which,  for  a  time, 
disrupted  the  Union,  in  fact  if  not  in  law.   The  driving  force 
of  that  great  moral  revolt  manifested  itself  in  no  uncertain 
terms  in  England  when  Lord  Mansfield,  in  Sommersett's  case,1  Mansfield  in 
held  that  a  person  forcibly  detained  in  England  as  a  slave,  is  ^mersett's 
entitled  to  be  discharged  on  habeas  corpus.  The  essence  of  the 
reasoning  by  which  that  conclusion  was  reached  was  this: 
"The state  of  slavery  is  of  such  a  nature,  that  it  is  incapable 
of  being  introduced  on  any  reasons,  moral  or  political,  but  only 
by  positive  law,  which  preserves  its  force  long  after  the  reasons, 
occasion,  and  time  itself  from  which  it  was  created  are  erased 
from  memory.   It  is  so  odious  that  nothing  can  be  suffered  to 
support  it,  but  positive  law.  Whatever  inconveniences,  there- 
fore, may  follow  from  the  decision,  I  cannot  say  this  case  is 
allowed  or  approved  by  the  law  of  England ;  and  therefore  the 
black  must  be  discharged."   As  will  be  pointed  out  hereafter, 
the  failure,  in  the  celebrated  case  of  Dred  Scott,2  —  wherein 
a  person,  having  the  status  of  a  slave  in  a  state  where  slavery- 
was  legal,  was  taken  by  his  master  into  a  free  state  of  the  Case  of 
Union  in  which  slavery  was  prohibited  by  law,  —  of  the  at-  Dred  Scott 
tempt  in  this  country  to  enforce  the  principle  thus  announced 
by  Lord  Mansfield,  precipitated  the  civil  war. 

1  20  St.  Tr.  sq.,  12  Geo.  III.  A.  D.  See  also  the  Slave  Grace,  2  Hagg. 
1771-72.      Broom's     Constitutional  Adm.  R.  94,  adjudged  by  Lord  Stow- 
Law,  59,  99.  ell;  The  Antelope,  10  Med.  66;  Os- 

2  Scott  v.  Sandford,  19  How.  393.  born  v.  Nicholson,  13  Wallace,  654. 


254 

Slaves  landed 
by  Dutch  at 
Jamestown, 
1619. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Cotton-gin, 
1793- 


Three  com- 
promises of  the 
Constitution. 


Negro  slavery,  whicli  originated  in  Africa,  spreading  to 
Spain  before  the  discovery  of  America,  and  to  America  soon 
after,  made  its  appearance  on  this  continent  the  year  before 
the  Mayflower  brought  the  Pilgrims  to  Plymouth  Rock, 
when  a  Dutch  ship  landed  twenty  African  slaves  at  James- 
town. In  1626  the  Dutch  West  India  Company  began  to  im- 
port slaves  into  Manhattan,  and  by  1637  there  were  slaves  in 
New  England.  A  Royal  African  Company  with  the  Duke  of 
York,  afterwards  James  II,  as  its  president,  was  formed  to 
monopolize  the  slave  trade,  which  monarchs  and  ministries 
furthered  to  the  utmost  of  their  power.  Despite  the  fact  that 
the  Crown  forced  the  institution  upon  Virginia,  that  great 
commonwealth  had,  prior  to  1700,  a  smaller  proportion  of 
slave  population  than  some  of  the  Northern  colonies.  While 
before  the  Revolution  all  the  colonies  held  negro  slaves,  at 
the  close  of  the  eighteenth  century  there  was  a  strong  anti- 
slavery  feeling  even  in  Virginia  and  North  Carolina.  Only  in 
South  Carolina  and  Georgia  was  slavery  then  looked  upon  with 
favor,  owing  no  doubt  to  the  fact  that  those  states  were  mostly 
given  to  the  cultivation  of  rice  and  indigo,  which  seemed  to 
make  slave  labor  indispensable.  A  sudden  transformation 
took  place,  however,  in  1793,  when  Whitney,  a  Connecticut 
schoolmaster  living  in  Georgia,  invented  the  cotton-gin, 
whereby  a  slave,  who  by  the  old  process  could  clean  but  five 
or  six  pounds  of  cotton  a  day,  was  enabled  to  clean  a  thousand 
pounds  a  day.  Under  such  a  stimulus,  slavery  at  once  ceased 
to  be  a  passive  and  innocuous  institution.  The  first  battle 
in  the  seventy  years'  war  over  slavery  was  fought  in  the  Fed- 
eral Convention  of  1787,  and  the  outcome  was  registered  in 
three  of  the  important  compromises  of  the  Constitution.  By 
the  first  it  was  agreed  that  "the  migration  or  importation  of 
such  persons  as  any  of  the  states  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Congress  prior 
to  the  year  one  thousand  eight  hundred  and  eight,  but  a  tax  or 
duty  may  be  imposed  on  such  importation,  not  exceeding  ten 
dollars  for  each  person."  1  By  the  second  it  was  agreed  that 
"  Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  states  which  may  be  included  within  this  Union,  ac- 
cording to  their  respective  numbers,  which  shall  be  determined 

1  Art.  I,  Sec.  9. 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  255 

by  adding  to  the  whole  number  of  free  persons,  including  those 
bound  to  service  for  a  term  of  years,  and  excluding  Indians  not 
taxed,  three  fifths  of  all  other  persons."  1  By  the  third  it  was 
agreed  that  "no  person  held  to  service  or  labor  in  one  state, 
under  the  laws  thereof,  escaping  into  another,  shall,  in  con- 
sequence of  any  law  or  regulation  therein,  be  discharged  from 
such  service  or  labor,  but  shall  be  delivered  up  on  claim  of  the 
party  to  whom  such  service  or  labor  may  be  due."  2 

While  the  Federal  Convention  was  entering  into  these  Ordinance 
solemn  compacts  regarding  the  institution  of  slavery  at  Phil-  c 
adelphia,  the  Continental  Congress,  then  sitting  at  New  York, 
was  completing  its  last  and  perhaps  its  greatest  work,  —  the 
Ordinance  of  1787  for  the  organization  and  government  of  the 
vast  area  known  as  the  Northwest  Territory.  A  brief  account 
has  been  given  heretofore  of  the  determined  stand  taken  by 
Delaware,  New  Jersey,  and  Maryland,  and  finally  by  Mary- 
land alone,  whereby  the  title  to  that  vast  domain  of  which 
France  had  been  dispossessed  "by  the  blood  and  treasure  of 
the  thirteen  states,"  was  vested  in  the  person  of  the  new  nation- 
ality, to  be  held  by  it  under  the  Articles  of  Confederation  as 
folkland  for  the  common  benefit  of  all.  Nor  until  Maryland  had 
received  satisfactory  assurances  on  that  subject  from  certain  of 
the  larger  states,  did  she  agree,  on  March  i,  1781,  to  complete 
the  first  Constitution  by  giving  it  her  adhesion.  Exactly  three  Title  to  North- 
years  thereafter,  Virginia,  the  most  important  claimant,  ex-  westTemtory. 
ecuted  a  deed  conveying  unconditionally,  and  in  due  time 
Massachusetts  and  Connecticut  did  the  same  thing.3  The  Six 
Nations  by  a  treaty  made  in  1784  renounced  all  claims  to  the 
country  west  of  the  Ohio;  in  January,  1785,  the  Wyandotte, 
Delaware,  Chippewa,  and  Ottawa  nations  released  the  country 
east  of  the  Cuyahoga,  and  all  the  lands  on  the  Ohio,  south  of 
the  line  of  portages  from  that  river  to  the  Great  Miami  and  the 
Maumee;  in  January,  1786,  the  Shawnees  concluded  a  treaty 
in  which  they  acknowledged  the  sovereignty  of  the  United 
States  over  all  their  territory  as  described  in  the  treaty  of  peace 
with  Great  Britain,  and  renounced  for  themselves  all  claim 
to  property  in  any  lands  east  of  the  main  branch  of  the  Great 
Miami.4  With  the  extinguishment  of  the  claims  of  the  ceding 

1  Art.  i,  Sec.  2,  Clause  3.  4  U.  S.  Statutes  at  Large,  vii, 

3  Art.  iv,  Sec.  2,  Clause  3.  15,  16-18,  26. 

8  See  above,  p.  134. 


256 


THE  AMERICAN  CONSTITUTION 


[CH. 


All  territorial 
lands  declared 
national  do- 
main, 1780. 


Rufus 
Putnam. 


Temporary 
government 
reported  by 
Jefferson,  1784. 


states  and  the  Indian  titles  to  Southern  Ohio,  and  all  Ohio 
to  the  east  of  the  Cuyahoga,  the  Confederation  became  the 
owner  of  the  Northwest  Territory,  —  the  area  out  of  which 
were  carved  the  great  states  of  Michigan,  Wisconsin,  Illinois, 
Indiana,  and  Ohio,  —  excepting  the  Connecticut  Reserve. 

In  the  absence  of  the  power  to  tax,  the  Confederation  found 
in  the  public  lands  under  its  control  the  only  fund  really  its 
own.  In  order  to  make  that  fund  available  the  Continental 
Congress,  as  early  as  September,  1780,  passed  a  resolution  de- 
claring that  all  territorial  lands  should  be  national  domain,  to 
be  disposed  of  for  the  common  benefit  of  the  states,  with  priv- 
ilege of  its  growing  into  states  as  equals  with  the  original  thir- 
teen. To  that  resolution  can  be  traced  the  exercise  of  national 
sovereignty  in  the  sense  of  eminent  domain.  So  soon  as 
Virginia  —  who  conquered  the  Northwest  during  the  Revolu- 
tion through  the  genius  and  valor  of  George  Rogers  Clark 
and  his  men  —  relinquished  unconditionally  her  claim  by  the 
deed  of  March  I,  1784,  it  became  necessary  for  Congress  to 
provide  for  the  government  of  a  domain  into  which  settlers 
were  then  eager  to  enter.  In  the  very  month  in  which  that  deed 
was  made,  Rufus  Putnam  —  who  had  in  the  preceding  year 
promoted  a  petition  to  Congress  of  officers  and  soldiers  of  the 
Revolution  for  leave  to  plant  a  colony  of  veterans  between 
Lake  Erie  and  the  Ohio,  in  townships  of  six  miles  square,  with 
large  reservations  "for  the  ministry  and  schools"1  —  ap- 
pealed to  Washington  with  the  assertion  that  "you  are  sen- 
sible of  the  necessity  as  well  as  the  possibility  of  both  officers 
and  soldiers  fixing  themselves  in  business  somewhere  as  soon 
as  possible;  many  of  them  are  unable  to  lie  long  on  their  oars." 
Under  these  circumstances  Jefferson,  as  chairman  of  a  com- 
mittee composed  of  Chase,  Howell,  and  himself,  on  April  19, 
1784,  reported  to  Congress  a  plan  for  a  temporary  government 
of  the  territory  in  which  was  this  article:  "That, after  the  year 
1800,  there  shall  be  neither  slavery,  nor  involuntary  servitude 
in  any  of  the  said  states,  otherwise  than  in  punishment  of 
crimes,  whereof  the  party  shall  have  been  convicted."  After 
Mr.  Spaight  had  moved  to  strike  out  that  paragraph,  "it  was 
struck  out  —  the  three  Southern  States  present  voting  for  the 


1  S.  P.  Hildreth,  Pioneer  Settlers 
of  Ohio,  88.   Walker,  29.   Letter  of 


Rufus   Putnam,   i6th  June,   1783. 
Bancroft,  ii,  105-106. 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  257 

striking  out,  because  the  clause  did  not  then  contain  the  pro- 
vision in  favor  of  the  recovery  of  fugitive  slaves,  which  was 
afterwards  ingrafted  upon  it.  "  Mr.  Webster  says  the  ordinance 
reported  by  Mr.  Jefferson  in  1784  did  not  pass  into  law.  This 
is  a  mistake  again.  It  did  pass;  and  that  within  five  days  after 
the  anti-slavery  clause  was  struck  out  — and  that  without  any 
attempt  to  renew  that  clause,  although  the  competent  number 
(seven)  of  non-slaveholding  states  were  present  —  the  col- 
league of  Mr.  Dick  having  joined  him,  and  constituted  the 
presence  of  New  Jersey."1  In  March,  1785,  the  subject  was  Jefferson's 
revived,  without  a  definite  result,  by  King  of  Massachusetts,  ^-^d  by 
who  proposed  the  rejected  anti-slavery  article  as  originally  King  in  1785. 
offered  by  Jefferson,  with  this  addition:  "And  that  this  regula- 
tion shall  be  an  article  of  compact,  and  remain  a  fundamental 
principle  of  the  constitutions  between  the  thirteen  original 
states,  and  each  of  the  states  described  in  the  resolve."  Thus 
the  matter  stood  when  the  Eighth  Congress  found  itself  with 
a  quorum  in  February,  1787.  To  that  Congress  Virginia 
sent  Madison,  Richard  Henry  Lee,  Edward  Carrington,  and 
William  Grayson,  always  opposed  to  slavery,  who  was  chosen 
presiding  officer.  As  the  necessity  of  providing  a  territorial 
government  was  more  than  ever  urgent,  the  report  on  that  sub- 
ject, which  was  to  have  had  its  third  reading  on  May  10,  was, 
on  July  9,  referred  to  a  new  committee  z  composed  of  Edward 
Carrington,  Nathan  Dane,  Richard  Henry  Lee,  Kean  of  South 
Carolina,  and  Melancthon  Smith  of  New  York,  who  worked 
so  diligently  that  on  July  1 1  their  report  of  an  ordinance  for  Report  by 
the  government  of  the  Northwest  Territory,  embodying  the 
best  parts  of  the  work  of  their  predecessors,  was  ready  for  its 
first  reading.  But  from  the  draft  contained  in  that  report, 
—  which  provided  that  the  whole  territory  was  to  be  divided 
into  three  states  only;  that  the  waters  leading  into  the  Missis- 
sippi and  St.  Lawrence,  and  the  carrying-places  between  them, 
should  be  made  common  highways  and  free  forever;  that  the 

1  Benton's  Thirty  Years1  View,  i,  that    the   report   of   a   committee 
133-136,  where  records  of  Congress  touching  the  temporary  government 
are  critically  examined  and  the  facts  of  the  western  territory  had  been 
as  to  Jefferson's  authorship  put  be-  referred  to  the  committee;  and  an 
yond  question.  indorsement  in  the  Department  of 

2  Mention  is  made  in  the  Journals  State  indicates  that  that  reference 
of  Congress,  iv,  751,  for  July   n,  was  made  July  9. 


258 


THE  AMERICAN  CONSTITUTION 


[CH. 


Bancroft's 
statement. 


Reference  in 
fifth  article 
to  consent 
of  Virginia. 


utmost  good  faith  should  be  enjoined  towards  the  Indians; 
that  schools  and  the  means  of  education  should  forever  be 
encouraged ;  that  irrepealable  articles  of  compact  guaranteeing 
the  freedom  of  religious  worship  and  other  rights  usually  con- 
tained in  bills  of  rights  should  be  established,  —  the  subject 
of  slavery  was  omitted  altogether.  With  that  grave  omission 
the  ordinance  received  its  first  reading  and  was  ordered  to  be 
printed.  As  the  subsequent  proceedings  have  been  the  subject 
of  sectional  controversy,  the  author  is  content  to  rest  the  mat- 
ter upon  the  statement  of  Bancroft,  who  says:  "Obeying  an 
intimation  from  the  South,  Nathan  Dane  copied  from  Jefferson 
the  prohibition  of  involuntary  servitude  in  the  territory,  and 
quieted  alarm  by  adding  from  the  report  of  King  a  clause  for 
the  delivering  up  of  the  fugitive  slave.  This  at  the  second 
reading  of  the  ordinance  he  moved  as  a  sixth  article  of  com- 
pact, and  on  the  thirteenth  of  July,  1787,  the  great  statute 
forbidding  slavery  to  cross  the  river  Ohio,  was  passed  by  the 
vote  of  Georgia,  South  Carolina,  North  Carolina,  Virginia, 
Delaware,  New  Jersey,  New  York,  and  Massachusetts,  all  the 
States  that  were  then  present  in  Congress.  .  .  .  Thomas  Jef- 
ferson first  summoned  Congress  to  prohibit  slavery  in  all  the 
territory  of  the  United  States ;  Ruf us  King  lifted  up  the  meas- 
ure when  it  lay  almost  lifeless  on  the  ground,  and  suggested 
the  immediate  instead  of  the  prospective  prohibition;  a  Con- 
gress composed  of  five  Southern  States  to  one  from  New 
England,  and  two  from  the  Middle  States,  headed  by  William 
Grayson,  supported  by  Richard  Henry  Lee,  and  using  Nathan 
Dane  as  scribe,  carried  the  measure  to  the  goal  in  the  amended 
form  in  which  King  had  caused  it  to  be  referred  to  a  committee ; 
and,  as  Jefferson  had  proposed,  placed  it  under  the  sanction  of 
an  irrevocable  compact."  x  But  here  let  it  be  remembered  that 
this  celebrated  ordinance  —  into  which  six  articles  were  in- 
serted to  be  considered  as  compacts  between  the  original  thir- 
teen states  and  the  people  of  said  territory,  to  remain  forever 
unalterable,  unless  by  common  consent — provided  in  the  fifth 
article  for  forming  from  said  territory  not  less  than  three  nor 
more  than  five  states,  the  boundaries  of  which  were  to  be  fixed 
by  the  articles  "as  soon  as  Virginia  shall  alter  her  act  of  cession 
to  consent  to  the  same."  The  fifth  article  also  provided  that 
1  Bancroft,  ii,  115-116. 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  259 

any  of  said  states  might  form  a  permanent  constitution  and 
state  government,  provided  the  same  were  republican,  and 
"  conformed  to  the  principles  contained  in  said  articles,"  one 
of  which,  the  sixth,  forbade  slavery  in  said  territory.  The  dis- 
tinct consent. of  Virginia,  as  the  grantor  in  the  deed  of  1784 
to  this  territory,  thus  became  necessary  not  only  to  the  pro- 
posed change  of  boundary,  but  also  to  the  clause  prohibiting 
slavery.  That  consent  was  given  by  the  legislature  of  Virginia, 
December  30,  1788,  in  such  a  form  as  to  ratify  and  confirm 
both  the  fifth  and  sixth  articles  of  the  compact  for  the  admis- 
sion of  such  new  states,  when  their  government  and  consti- 
tution should  be  republican  and  in  conformity  to  the  principles 
contained  in  the  articles  in  question.  As  an  eminent  Virginia  Tucker's 
jurist  has  expressed  it:  "This  transaction  not  only  estops  the  summing  up. 
other  states  to  deny  the  exclusive  and  paramount  title  of  Vir- 
ginia, but  estops  all  others  and  Virginia  to  deny  that  by  her  own 
sovereign  act  as  owner  of  the  territory  she  consented  that  it 
should  be  free  territory  forever  thereafter.  It  will  be  found 
from  the  learned  opinion  of  Chief-Justice  Taney  in  Dred  Scott 
v.  Sandford,  concurred  in  by  Justices  Wayne,  Grier,  Daniel, 
Campbell,  and  Catron,  in  all  six  judges  out  of  .nine,  that  these 
historical  views  are  fully  sustained,  though  it  does  not  bring 
out  the  point,  so  necessary,  of  Virginia's  consent  to  the  pro- 
hibition clause  of  the  articles,  and  of  her  unqualified  consent 
to  it  as  a  condition  of  the  change  proposed.  The  act  was  not 
an  act  of  Congress  under  the  Articles  of  Confederation,  but  an 
act  of  the  several  states,  Virginia  consenting  to  the  establish- 
ment of  this  ordinance."  l 

The  text  of  the  famous  Ordinance  of  July  13,  1787,  entitled  Text  of  the 
"An  Ordinance  for  the  government  of  the  territory  of  the 
United  States  northwest  of  the  river  Ohio,"  which  is  so  great  a  13, 1787. 
factor  in  our  constitutional  history,  is  here  reproduced :  — 

SECTION  I.  Be  it  ordained  by  the  United  States  in  Congress  assembled, 
That  the  said  territory,  for  the  purposes  of  temporary  government,  be 
one  district,  subject,  however,  to  be  divided  into  two  districts,  as  future 
circumstances  may,  in  the  opinion  of  Congress,  make  it  expedient. 

SEC.  2.  Be  it  ordained  by  the  authority  aforesaid,  That  the  estates  both 

of  resident  and  non-resident  proprietors  in  the  said  territory,  dying 

intestate,  shall  descend  to,  and  be  distributed  among,  their  children  and 

the  descendants  of  a  deceased  child  in  equal  parts,  the  descendants  of  a 

1  J.  R.  Tucker,  The  Constitution,  ii,  604. 


260  THE  AMERICAN  CONSTITUTION  [Cn. 

deceased  child  or  grandchild  to  take  the  share  of  their  deceased  parent 
in  equal  parts  among  them;  and  where  there  shall  be  no  children  or 
descendants,  then  in  equal  parts  to  the  next  of  kin,  in  equal  degree; 
and  among  collaterals,  the  children  of  a  deceased  brother  or  sister  of  the 
intestate  shall  have,  in  equal  parts  among  them,  their  deceased  parent's 
share ;  and  there  shall,  in  no  case,  be  a  distinction  between  kindred  of 
the  whole  and  half  blood ;  saving  in  all  cases  to  the  widow  of  the  intes- 
tate, her  third  part  of  the  real  estate  for  life,  and  one  third  part  of  the 
personal  estate ;  and  this  law  relative  to  descents  and  dower,  shall  remain 
in  full  force  until  altered  by  the  legislature  of  the  district.  And  until  the 
governor  and  judges  shall  adopt  laws  as  hereinafter  mentioned,  estates 
in  the  said  territory  may  be  devised  or  bequeathed  by  wills  in  writing, 
signed  and  sealed  by  him  or  her  in  whom  the  estate  may  be,  (being  of 
full  age,)  and  attested  by  three  witnesses;  and  real  estates  may  be  con- 
veyed by  lease  and  release,  or  bargain  and  sale,  signed,  sealed,  and  de- 
livered by  the  person,  being  of  full  age,  in  whom  the  estate  may  be, 
and  attested  by  two  witnesses,  provided  such  wills  be  duly  proved,  and 
such  conveyances  be  acknowledged,  or  the  execution  thereof  duly 
proved,  and  be  recorded  within  one  year  after  proper  magistrates, 
courts,  and  registers  shall  be  appointed  for  that  purpose;  and  personal 
property  may  be  transferred  by  delivery,  saving,  however,  to  the  French 
and  Canadian  inhabitants,  and  other  settlers  of  the  Kaskaskies,  Saint 
Vincents,  and  the  neighboring  villages,  who  have  heretofore  professed 
themselves  citizens  of  Virginia,  their  laws  and  customs  now  in  force 
among  them,  relative  to  the  descent  and  conveyance  of  property. 

SEC.  3.  Be  it  ordained  by  the  authority  aforesaid,  That  there  shall  be 
appointed,  from  time  to  time,  by  Congress,  a  governor,  whose  commis- 
sion shall  continue  in  force  for  the  term  of  three  years,  unless  sooner 
revoked  by  Congress;  and  he  shall  reside  in  the  district,  and  have  a  free- 
hold estate  therein,  in  one  thousand  acres  of  land,  while  in  the  exercise 
of  his  office. 

SEC.  4.  There  shall  be  appointed  from  time  to  time,  by  Congress,  a 
secretary,  whose  commission  shall  continue  in  force  for  four  years,  unless 
sooner  revoked ;  he  shall  reside  in  the  district,  and  have  a  freehold  estate 
therein,  in  five  hundred  acres  of  land,  while  in  the  exercise  of  his  office. 
It  shall  be  his  duty  to  keep  and  preserve  the  acts  and  laws  passed  by  the 
legislature,  and  the  public  records  of  the  district,  and  the  proceedings 
of  the  governor  in  his  executive  department,  and  transmit,  authentic 
copies  of  such  acts  and  proceedings  every  six  months  to  the  Secretary  of 
Congress.  There  shall  also  be  appointed  a  court,  to  consist  of  three 
judges,  any  two  of  whom  to  form  a  court,  who  shall  have  a  common- 
law  jurisdiction,  and  reside  in  the  district,  and  have  each  therein  a  free- 
hold estate,  in  five  hundred  acres  of  land,  while  in  the  exercise  of  their 
offices;  and  their  commissions  shall  continue  in  force  during  good  be- 
havior. 

SEC.  5.  The  governor  and  judges,  or  a  majority  of  them,  shall  adopt 
and  publish  in  the  district  such  laws  of  the  original  states,  criminal  and 
civil,  as  may  be  necessary,  and  best  suited  to  the  circumstances  of  the 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  26l 

district,  and  report  them  to  Congress  from  time  to  time,  which  laws  shall 
be  in  force  in  the  district  until  the  organization  of  the  general  assembly 
therein,  unless  disapproved  of  by  Congress;  but  afterwards  the  legis- 
lature shall  have  authority  to  alter  them  as  they  shall  think  fit. 

SEC.  6.  The  governor,  for  the  time  being,  shall  be  commander-in- 
chief  of  the  militia,  appoint  and  commission  all  officers  in  the  same 
below  the  rank  of  general  officers;  all  general  officers  shall  be  appointed 
and  commissioned  by  Congress. 

SEC.  7.  Previous  to  the  organization  of  the  general  assembly,  the 
governor  shall  appoint  such  magistrates,  and  other  civil  officers,  in 
each  county  or  township,  as  he  shall  find  necessary  for  the  preservation 
of  the  peace  and  good  order  in  the  same.  After  the  general  assembly 
shall  be  organized,  the  powers  and  duties  of  magistrates  and  other  civil 
officers  shall  be  regulated  and  defined  by  the  said  assembly;  but  all 
magistrates  and  other  civil  officers,  not  herein  otherwise  directed,  shall, 
during  the  continuance  of  this  temporary  government,  be  appointed  by 
the  governor. 

SEC.  8.  For  the  prevention  of  crimes  and  injuries,  the  laws  to  be 
adopted  or  made  shall  have  force  in  all  parts  of  the  district,  and  for  the 
execution  of  process,  criminal  and  civil,  the  governor  shall  make  proper 
divisions  thereof;  and  he  shall  proceed,  from  time  to  time,  as  circum- 
stances may  require,  to  lay  out  the  parts  of  the  district  in  which  the 
Indian  titles  shall  have  been  extinguished,  into  counties  and  townships, 
subject,  however,  to  such  alterations  as  may  thereafter  be  made  by  the 
legislature. 

SEC.  9.  So  soon  as  there  shall  be  five  thousand  free  male  inhabitants, 
of  full  age,  in  the  district,  upon  giving  proof  thereof  to  the  governor, 
they  shall  receive  authority,  with  time  and  place,  to  elect  representa- 
tives from  their  counties  or  townships,  to  represent  them  in  the  general 
assembly:  Provided,  That  for  every  five  hundred  free  male  inhabitants 
there  shall  be  one  representative,  and  so  on,  progressively,  with  the 
number  of  free  male  inhabitants,  shall  the  right  of  representation  in- 
crease, until  the  number  of  representatives  shall  amount  to  twenty-five; 
after  which  the  number  and  proportion  of  representatives  shall  be  regu- 
lated by  the  legislature:  Provided,  That  no  person  be  eligible  or  quali- 
fied to  act  as  a  representative,  unless  he  shall  have  been  a  citizen  of  one 
of  the  United  States  three  years,  and  be  a  resident  in  the  district,  or 
unless  he  shall  have  resided  in  the  district  three  years;  and,  in  either 
case,  shall  likewise  hold  in  his  own  right,  in  fee-simple,  two  hundred 
acres  of  land  within  the  same:  Provided  also,  That  a  freehold  in  fifty 
acres  of  land  in  the  district,  having  been  a  citizen  of  one  of  the  states, 
and  being  resident  in  the  district,  or  the  like  freehold  and  two  years' 
residence  in  the  district,  shall  be  necessary  to  qualify  a  man  as  an 
elector  of  a  representative. 

SEC.  10.  The  representatives  thus  elected  shall  serve  for  the  term  of 
two  years;  and  in  case  of  the  death  of  a  representative,  or  removal  from 
office,  the  governor  shall  issue  a  writ  to  the  county  or  township,  for 
which  he  was  a  member,  to  elect  another  in  his  stead,  to  serve  for  the 
residue  of  the  term. 


262  THE  AMERICAN  CONSTITUTION  [Cn. 

SEC.  II.  The  general  assembly,  or  legislature,  shall  consist  of  the 
governor,  legislative  council,  and  a  house  of  representatives.  The  legis- 
lative council  shall  consist  of  five  members,  to  continue  in  office  five 
years,  unless  sooner  removed  by  Congress;  any  three  of  whom  to  be  a 
quorum;  and  the  members  of  the  council  shall  be  nominated  and  ap- 
pointed in  the  following  manner,  to  wit:  As  soon  as  representatives  shall 
be  elected,  the  governor  shall  appoint  a  time  and  place  for  them  to  meet 
together,  and  when  met  they  shall  nominate  ten  persons,  resident  in 
the  district,  and  each  possessed  of  a  freehold  in  five  hundred  acres  of 
land,  and  return  their  names  to  Congress,  five  of  whom  Congress  shall 
appoint  and  commission  to  serve  as  aforesaid ;  and  whenever  a  vacancy 
shall  happen  in  the  council,  by  death  or  removal  from  office,  the  house 
of  representatives  shall  nominate  two  persons,  qualified  as  aforesaid, 
for  each  vacancy,  and  return  their  names  to  Congress,  one  of  whom 
Congress  shall  appoint  and  commission  for  the  residue  of  the  term; 
and  every  five  years,  four  months  at  least  before  the  expiration  of  the 
time  of  service  of  the  members  of  the  council,  the  said  house  shall  nom- 
inate ten  persons,  qualified  as  aforesaid,  and  return  their  names  to  Con- 
gress, five  of  whom  Congress  shall  appoint  and  commission  to  serve  as 
members  of  the 'council  five  years,  unless  sooner  removed.  And  the 
governor,  legislative  council,  and  house  of  representatives  shall  have 
authority  to  make  laws  in  all  cases  for  the  good  government  of  the  dis- 
trict, not  repugnant  to  the  principles  and  articles  in  this  ordinance 
established  and  declared.  And  all  bills,  having  passed  by  a  majority  in 
the  house,  and  by  a  majority  in  the  council,  shall  be  referred  to  the 
governor  for  his  assent;  but  no  bill,  or  legislative  act  whatever,  shall 
be  of  any  force  without  his  assent.  The  governor  shall  have  power  to 
convene,  prorogue,  and  dissolve  the  general  assembly  when,  in  his 
opinion,  it  shall  be  expedient. 

SEC.  12.  The  governor,  judges,  legislative  council,  secretary,  and 
such  other  officers  as  Congress  shall  appoint  in  the  district,  shall  take 
an  oath  or  affirmation  of  fidelity,  and  of  office;  the  governor  before  the 
President  of  Congress,  and  all  other  officers  before  the  governor.  As 
soon  as  a  legislature  shall  be  formed  in  the  district,  the  council  and 
house  assembled,  in  one  room,  shall  have  authority,  by  joint  ballot,  to 
elect  a  delegate  to  Congress,  who  shall  have  a  seat  in  Congress,  with  a 
right  of  debating,  but  not  of  voting,  during  this  temporary  government. 

SEC.  13.  And  for  extending  the  fundamental  principles  of  civil  and 
religious  liberty,  which  form  the  basis  whereon  these  republics,  their 
laws  and  constitutions,  are  erected ;  to  fix  and  establish  those  principles 
as  the  basis  of  all  laws,  constitutions,  and  governments,  which  forever 
hereafter  shall  be  formed  in  the  said  territory;  to  provide,  also,  for  the 
establishment  of  states,  and  permanent  government  therein,  and  for 
their  admission  to  a  share  in  the  federal  councils  on  an  equal  footing 
with  the  original  states,  at  as  early  periods  as  may  be  consistent  with 
the  general  interest: 

SEC.  14.  It  is  hereby  ordained  and  declared,  by  the  authority  afore- 
said, that  the  following  articles  shall  be  considered  as  articles  of  com- 


IX.]       AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  263 

pact,  between  the  original  states  and  the  people  and  states  in  the  said 
territory,  and  forever  remain  unalterable,  unless  by  common  consent, 
to  wit: 

ARTICLE  I 

No  person,  demeaning  himself  in  a  peaceable  and  orderly  manner, 
shall  ever  be  molested  on  account  of  his  mode  of  worship,  or  religious 
sentiments,  in  the  said  territories. 

ARTICLE  II 

The  inhabitants  of  the  said  territory  shall  always  be  entitled  to  the 
benefits  of  the  writ  of  habeas  corpus,  and  of  the  trial  by  jury;  of  a  pro- 
portionate representation  of  the  people  in  the  legislature;  and  of  judicial 
proceedings  according  to  the  course  of  the  common  law.  All  persons 
shall  be  bailable,  unless  for  capital  offenses,  where  the  proof  shall  be 
evident,  or  the  presumption  great.  All  fines  shall  be  moderate ;  and  no 
cruel  or  unusual  punishments  shall  be  inflicted.  No  man  shall  be  de- 
prived of  his  liberty  or  property  but  by  the  judgment  of  his  peers,  or  the 
law  of  the  land,  and  should  the  public  exigencies  make  it  necessary,  for 
the  common  preservation,  to  take  any  person's  property,  or  to  demand 
his  particular  services,  full  compensation  shall  be  made  for  the  same. 
And,  in  the  just  preservation  of  rights  and  property,  it  is  understood 
and  declared,  that  no  law  ought  ever  to  be  made  or  have  force  in  the 
said  territory,  that  shall,  in  any  manner  whatever,  interfere  with  or 
affect  private  contracts,  or  engagements,  bona  fide,  and  without  fraud 
previously  formed. 

ARTICLE  III 

Religion,  morality,  and  knowledge  being  necessary  to  good  govern- 
ment and  the  happiness  of  mankind,  schools  and  the  means  of  educa- 
tion shall  forever  be  encouraged.  The  utmost  good  faith  shall  always 
be  observed  towards  the  Indians;  their  lands  and  property  shall  never 
be  taken  from  them  without  their  consent;  and  in  their  property,  rights, 
and  liberty  they  never  shall  be  invaded  or  disturbed,  unless  in  just  and 
lawful  wars  authorized  by  Congress;  but  laws  founded  in  justice  and 
humanity  shall,  from  time  to  time,  be  made,  for  preventing  wrongs  being 
done  to  them,  and  for  preserving  peace  and  friendship  with  them. 

ARTICLE  IV 

The  said  territory,  and  the  States  which  may  be  formed  therein,  shall 
forever  remain  a  part  of  this  confederacy  of  the  United  States  of  America, 
subject  to  the  Articles  of  Confederation,  and  to  such  alterations  therein 
as  shall  be  constitutionally  made;  and  to  all  the  acts  and  ordinances  of 
the  United  States  in  Congress  assembled,  conformable  thereto.  The 
inhabitants  and  settlers  in  the  said  territory  shall  be  subject  to  pay  a 
part  of  the  federal  debts,  contracted,  or  to  be  contracted,  and  a  pro- 
portional part  of  the  expenses  of  government  to  be  apportioned  on  them 


264  THE  AMERICAN  CONSTITUTION  [Cn. 

by  Congress,  according  to  the  same  common  rule  and  measure  by  which 
apportionments  thereof  shall  be  made  on  the  other  states;  and  the  taxes 
for  paying  their  proportion  shall  be  laid  and  levied  by  the  authority  and 
direction  of  the  legislatures  of  the  district,  or  districts,  or  new  states,  as 
in  the  original  states,  within  the  time  agreed  upon  by  the  United  States 
in  Congress  assembled.  The  legislatures  of  those  districts,  or  new  states, 
shall  never  interfere  with  the  primary  disposal  of  the  soil  by  the  United 
States  in  Congress  assembled,  nor  with  any  regulations  Congress  may 
find  necessary  for  securing  the  title  in  such  soil  to  the  bona-fide  pur- 
chasers. No  tax  shall  be  imposed  on  lands  the  property  of  the  United 
States;  and  in  no  case  shall  non-resident  proprietors  be  taxed  higher 
than  residents.  The  navigable  waters  leading  into  the  Mississippi  and 
Saint  Lawrence,  and  the  carrying-places  between  the  same,  shall  be 
common  highways,  and  forever  free,  as  well  to  the  inhabitants  of  the 
said  territory  as  to  the  citizens  of  the  United  States,  and  those  of  any 
other  states  that  may  be  admitted  into  the  Confederacy,  without  any 
tax,  impost,  or  duty  therefor. 

ARTICLE  V 

There  shall  be  formed  in  the  said  territory  not  less  than  three  nor 
more  than  five  states;  and  the  boundaries  of  the  states,  as  soon  as 
Virginia  shall  alter  her  act  of  cession  and  consent  to  the  same,  shall 
become  fixed  and  established  as  follows,  to  wit:  The  western  state,  in 
the  said  territory,  shall  be  bounded  by  the  Mississippi,  the  Ohio,  and  the 
Wabash  Rivers;  a  direct  line  drawn  from  the  Wabash  and  Post  Vin- 
cents, due  north,  to  the  territorial  line  between  the  United  States  and 
Canada ;  and  by  the  said  territorial  line  to  the  Lake  of  the  Woods  and 
Mississippi.  The  middle  state  shall  be  bounded  by  the  said  direct 
line,  the  Wabash  from  Post  Vincents  to  the  Ohio,  by  the  Ohio,  by  a 
direct  line  drawn  due  north  from  the  mouth  of  the  Great  Miami  to  the 
said  territorial  line,  and  by  the  said  territorial  line.  The  eastern  state 
shall  be  bounded  by  the  last-mentioned  direct  line,  the  Ohio,  Pennsyl- 
vania, and  the  said  territorial  line :  Provided,  however,  And  it  is  further 
understood  and  declared,  that  the  boundaries  of  these  three  states  shall 
be  subject  so  far  to  be  altered,  that,  if  Congress  shall  hereafter  find  it 
expedient,  they  shall  have  authority  to  form  one  or  two  states  in  that 
part  of  the  said  territory  which  lies  north  of  an  east  and  west  line  drawn 
through  the  southerly  bend  or  extreme  of  Lake  Michigan.  And  when- 
ever any  of  the  said  states  shall  have  sixty  thousand  free  inhabitants 
therein,  such  state  shall  be  admitted,  by  its  delegates,  into  the  Congress 
of  the  United  States,  on  an  equal  footing  with  the  original  states,  in  all 
respects  whatever ;  and  shall  be  at  liberty  to  form  a  permanent  consti- 
tution and  state  government:  Provided,  The  constitution  and  govern- 
ment, so  to  be  formed,  shall  be  republican,  and  in  conformity  to  the 
principles  contained  in  these  articles,  and,  so  far  as  it  can  be  consistent 
with  the  general  interest  of  the  Confederacy,  such  admission  shall  be 
allowed  at  an  earlier  period,  and  when  there  may  be  a  less  number  of 
free  inhabitants  in  the  state  than  sixty  thousand. 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  265 

ARTICLE  VI 

There  shall  be  neither  slavery  nor  involuntary  servitude  in  the  said 
territory,  otherwise  than  in  the  punishment  of  crimes,  whereof  the  party 
shall  have  been  duly  convicted :  Provided  always,  That  any  person  es- 
caping into  the  same,  from  whom  labor  or  service  is  lawfully  claimed  in 
any  one  of  the  original  states,  such  fugitive  may  be  lawfully  reclaimed, 
and  conveyed  to  the  person  claiming  his  or  her  labor  or  service  as  afore- 
said. 

Be  it  ordained  by  the  authority  aforesaid,  That  the  resolutions  of  the  23d 
of  April,  1784,  relative  to  the  subject  of  this  ordinance,  be,  and  the  same 
are  hereby,  repealed,  and  declared  null  and  void. 

Done  by  the  United  States,  in  Congress  assembled,  the  I3th  day  of 
July,  in  the  year  of  our  Lord  1787,  and  of  their  sovereignty  and  inde- 
pendence the  twelfth.1 

It  is  impossible  to  consider  the  terms  of  the  foregoing  en-  Colonists  and 
actment  which  laid  the  foundation  of  our  colonial  system  constltution 

of  mother 

without  being  impressed  with  the  fact  that  its  draftsmen,  in  state, 
obedience  to  a  principle  universal  in  the  ancient  and  modern 
world,2  excluded  the  colonists  from  all  right  to  participate  in  the 
constitution  of  the  mother  state,  save  so  far  as  particular  pro- 
visions of  it  might  be  extended  to  them  as  a  matter  of  grace  and 
not  as  a  matter  of  right.  Really  the  only  connection  between 
the  colonial  government  of  the  Northwest  and  the  legislature 
of  the  parent  state  was  through  "a  delegate  to  Congress,  who 
shall  have  a  seat  in  Congress,  with  a  right  of  debating,  but  not 
of  voting."  The  rank  heresy  of  a  later  time,  that  "the  Consti- 
tution follows  the  flag,"  finds  nothing  but  refutation  in  the 
terms  of  the  acts  through  which  our  early  colonial  systems  were 
organized.  The  fundamental  principle  upon  which  all  of  them 
rests  is  that  the  Constitution  is  the  exclusive  possession  of  the 
fully  organized  states.  That  fact  was  emphasized  with  pecul- 
iar force  in  the  case  of  American  Ins.  Co.  v.  Canter,3  in  which 
it  was  held  that  a  territorial  court  whose  judges  hold  their 
offices  for  four  years  cannot  be  a  court  of  the  United  States 

1  Wallace  v.  Parker,  6  Pet.  680;  dean».  Hanes,  21  Wall.  521;  Morton 

Jones  v.  Van  Zandt,  5  How.  215;  v.  Nebraska,  21  Wall.  660. 
Strader  et  al.  v.  Graham,  10  How.          2  See  the  author's  article  on  that 

82 ;  Pennsylvania  v .  Wheeling  Bridge  subject,  entitled  "  Is  Colonization  a 

Company,  18  How.  421;  Bates  v.  Crime."  The  North  American  Review, 

Brown,  5  Wall.  710;  Messenger  v.  October,  1906. 
Mason,  10  Wall.  507;  Clinton  et  al.  8  I  Pet.  511. 
v.  Englebrecht,  13  Wall.  434;  Lang- 


266 


THE  AMERICAN  CONSTITUTION 


[Cm. 


Marshall 
explains  the 
relation. 


Insular  Tariff 
Cases,  1900. 


Certain  con- 
stitutional 
provisions 
applicable  to 
all  territory. 


within  the  meaning  of  the  Constitution,  because  that  provides 
that  the  judges  shall  hold  their  offices  during  good  behavior. 
As  Marshall,  C.  J.,  has  expressed  it:  "We  have  only  to  pursue 
this  subject  one  step  further,  to  perceive  that  this  provision 
of  the  Constitution  does  not  apply  to  it.  The  next  sentence  de- 
clares that  'the  judges  both  of  the  supreme  and  inferior  courts 
shall  hold  their  offices  during  good  behavior.'  The  judges  of  the 
superior  courts  of  Florida  hold  their  offices  for  four  years. 
The  courts,  then,  are  not  constitutional  courts,  in  which  the 
judicial  power  conferred  by  the  Constitution  on  the  General 
Government  can  be  deposited.  They  are  incapable  of  receiving 
it.  They  are  legislative  courts,  created  in  virtue  of  the  general 
right  of  sovereignty  which  exists  in  the  Government,  or  in 
virtue  of  that  clause  which  enables  Congress  to  make  all  need- 
ful rules  and  regulations,  respecting  the  territory  belonging 
to  the  United  States."  In  a  word,  the  colonies  or  territories 
of  the  United  States  are  governed,  as  all  other  colonies  in  the 
world's  history  have  been  governed,  by  the  parent  state, 
without  the  right  to  participate  in  its  Constitution.  The  whole 
subject  has  been  most  exhaustively  reviewed  by  the  Supreme 
Court  in  what  are  known  as  the  Insular  Tariff  Cases  (1900). l 
In  the  case  of  Downes  v.  Bidwell,  it  was  expressly  held  that 
incorporation  into  the  United  States  of  territory  acquired  by 
treaty  or  cession,  in  which  there  are  conditions  against  the 
incorporation  of  the  territory  until  Congress  provides  there- 
for, will  not  take  place  until  in  the  wisdom  of  Congress  it 
is  deemed  that  the  acquired  territory  has  reached  that  state 
where  it  is  proper  that  it  should  enter  into  and  form  a  part  of 
the  American  family.  Until  the  fiat  is  given  by  Congress,  no 
territory  can  pass  from  a  colonial  or  territorial  condition  into 
that  full  statehood  which  alone  confers  the  right  to  participate 
in  the  national  Constitution.  However,  there  are  certain  pro- 
visions of  the  Constitution  applicable  to  all  territory  governed 
by  Congress,  whether  incorporated  into  the  United  States  or 
not,  because  only  subject  to  the  limitations  they  contain  can 
Congress  act  at  all.  In  the  words  of  the  Court:  "It  does  not 
follow  that  in  the  mean  time,  awaiting  the  decision,  the  people 
are  in  the  matter  of  personal  rights  unprotected  by  the  pro- 
visions of  our  Constitution  and  subject  to  the  merely  arbitrary 
*  182  U.S.  1-391. 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  267 

control  of  Congress.  Even  if  regarded  as  aliens,  they  are  en- 
titled under  the  principles  of  the  Constitution  to  be  protected 
in  life,  liberty,  and  property. "  1 

It  must  also  be  observed  that  the  charter  of  our  first  colony  Restricted 
conferred  the  right  of  suffrage  with  this  serious  limitation: 
"  Provided  also,  that  a  freehold  in  fifty  acres  of  land  in  the  dis- 
trict, having  been  a  citizen  of  one  of  the  states,  and  being  a 
resident  in  the  district,  or  the  like  freehold  and  two  years'  resid- 
ence in  the  district,  shall  be  necessary  to  qualify  a  man  as  an 
elector  of  a  representative."  At  the  time  of  the  severance  of 
the  colonies  from  the  mother  country  the  total  number  of  elect- 
ors in  the  British  Isles  was  only  about  400,000,  a  condition  of 
things  that  continued  down  to  the  Reform  Bill  of  1 832.2  The 
English  idea  that  the  right  to  vote  was  the  privilege  of  the 
property-holding  few  became  the  rule  in  the  constitutions  of 
the  older  states,  and  from  them  it  passed  into  our  first  terri- 
torial possessions.  In  making  the  second  Constitution  the  states 
reserved  to  themselves  very  jealously  the  right  to  regulate  right  of  a  state 
the  suffrage.  The  National  House  of  Representatives  is  based  to  regulate  !t 
upon  population,  but  when  its  members  are  to  be  chosen,  "the 
electors  in  each  state  shall  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  state  legislature." 
If  a  state  does  not  violate  the  rule  of  the  Fifteenth  Amendment 
as  to  "race,  color,  or  previous  condition  of  servitude,"  it  may 
vest  the  election  of  the  most  numerous  branch  of  its  legis- 
lature in  a  little  oligarchy,  qualified,  if  it  so  pleases,  by  a  very 
high  property  or  other  exacting  qualification.  Manhood  suf- 
frage in  this  country  rests  upon  no  guarantee  that  the  states 
may  not  at  any  time  set  aside. 

At  the  moment  the  old  Congress  was  completing  at  New  Death  of  the 
York  this  great  compact  involving  the  future  of  slavery,  the  old  Consress- 
Convention  at  Philadelphia  was  in  the  midst  of  the  death- 
grapple  between  the  larger  and  smaller  states  as  to  the  organ- 
ization of  the  two  branches  of  the  new  federal  legislature. 
From  that  time  onward  the  mildly  sovereign  body  of  the  Con- 
federation, having  now  performed  its  last  and  by  far  its  most 
notable  legislative  act,  began  to  dwindle  in  public  interest. 

1  Citing  Yick  Wo  r.  Hopkins,  1 18          2  See  The  Origin  and  Growth  of 
U.  S.  356;  Fong  Yue  Ting  v.  United      the  English  Constitution,  ii,  531. 
States,  149  U.S.  698,  and  other  cases. 


268 


THE  AMERICAN  CONSTITUTION 


[CH. 


Passed  its  last 
act  October 
10, 1788. 


The  Ohio 
Company. 


It  really  performed  its  last  important  function  when,  after  the 
reading,  on  September  28,  of  the  report  from  the  Federal  Con- 
vention, it  transmitted  the  result  of  its  labors  to  the  several 
state  executives,  to  be  by  them  submitted  "to  a  convention  of 
delegates,  chosen  in  each  state  by  the  people  thereof,  under 
the  recommendation  of  its  legislature  for  their  assent  and  rati- 
fication. "  l  Madison,  after  completing  his  labors  at  Philadel- 
phia, resumed  his  seat  in  Congress  on  October  8 ;  and  when  he 
was  joined  for  a  time  by  Alexander  Hamilton  on  February  23, 
1788,  they  were  the  only  men  of  note  in  the  body.  After  linger- 
ing through  the  summer,  it  passed  its  last  act  on  October  10. 
Only  two  members  attended  on  November  3.  From,  that  time 
onward  "a  few  members  would  have  their  names  recorded 
as  present  each  day.  On  March  2  (1789),  Philip  Pell  of  New 
York  attended  alone,  and  the  Congress  was  dead.  It  was  never 
adjourned,  and  had  no  formal  dissolution.  The  faithful  secre- 
tary, Charles  Thompson,  wrote  the  last  entry  in  the  Journal, 
and  he  and  the  forgotten  Mr.  Pell  were  the  sole  spectators 
of  the  end.  People  had  forgotten  that  the  Congress  still  lin- 
gered, for  attention  was  concentrated  upon  the  new  Congress 
called  to  meet  March  4th."  2  And  here  it  should  be  said  that 
before  the  old  order  of  things  passed  away  "the  Ohio  Com- 
pany "  —  whose  organization  began  in  January,  1786,  with  the 
invitation  published  by  Putnam  and  Tupper  in  the  newspapers 
of  Massachusetts  to  all  who  desired  to  unite  for  purchasing 
and  colonizing  a  large  area  between  the  Ohio  and  Lake  Erie 
—  was  prepared  at  a  meeting  of  subscribers  held  on  March  8, 
1787,  at  Boston,  to  elect  Parsons,  Putnam,  and  Cutler  direct- 
ors, in  order  that  they  might  draft  a  memorial 3  to  Congress 
for  a  purchase  of  lands  adequate  to  the  wants  of  the  under- 
taking. With  matters  thus  arranged  beforehand,  the  agents 
of  the  Ohio  Company,  so  soon  as  the  Ordinance  of  1787  was 
passed,  rapidly  settled  the  terms  of  a  sale  with  the  United 
States,  substantially  on  the  basis  of  the  report  of  Carrington.4 

ninth,  1787.  Referred  to  Mr.  Car- 
rington, Mr.  King,  Mr.  Dane,  Mr. 
Madison,  Mr.  Benson.  Acted  on 
July  23, 1787.  See  committee  book." 
Vol.  xli,  Papers  of  the  Old  Congress; 
vol.  viii,  226,  of  the  Memorials. 

*  Cf.   Journals  of  Congress,   iv, 
Appendix  17. 


1  Journals  of  Congress,  iv,  782. 

8  Gaillard  Hunt,  Life  of  Madison, 
p.  168. 

8  The  memorial,  in  the  handwrit- 
ing of  Parsons,  is  indorsed,  "Me- 
morial of  Samuel  H.  Parsons,  agent 
of  the  associators  for  the  purchase 
of  lands  on  the  Ohio.  Read  May 


IX.]        AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  269 

Old  soldiers  of  the  best  character  whom  the  war  had  impover- 
ished were  ready  to  go  at  once.  "No  colony  in  America," 
said  Washington,  "was  ever  settled  under  such  favorable  cir- 
cumstances as  that  which  has  just  commenced  at  Muskingum. 
Information,  property,  and  strength  will  be  its  characteris- 
tics." 1  In  its  petition  the  Ohio  Company  asked  for  nothing 
better  than  that  its  settlers  should  be  "under  the  immediate 
government  of  Congress  in  such  mode  and  for  such  time  as 
Congress  shall  judge  proper." 

In  a  notable  speech  delivered  in  1829,  Daniel  Webster  said:  Webster's 
"At  the  foundation  of  the  constitution  of  these  new  north-  tnbute- 
western  states,  we  are  accustomed,  sir,  to  praise  the  lawgivers 
of  antiquity;  we  help  to  perpetuate  the  fame  of  Solon  and 
Lycurgus;  but  I  doubt  whether  one  single  law  of  any  lawgiver, 
ancient  or  modern,  has  produced  effects  of  more  distinct, 
marked,  and  lasting  character  than  the  Ordinance  of  1787."  2 
While  Madison  warmly  commended  the  Act,  he  said  that  Con-  Madison's 
gress  did  it  "without  the  least  color  of  constitutional  author- 
ity," —  as  the  Articles  of  Confederation  contemplated  no  occa- 
sion for  such  an  assertion  of  sovereignty,  and  as  the  Ordinance 
was  never  submitted  to  the  states  for  ratification.  "A  great 
and  independent  fund  of  revenue,"  said  Madison,  "is  passing 
into  the  hands  of  a  single  body  of  men,  who  can  raise  troops 
to  an  indefinite  number,  and  appropriate  money  for  their  sup- 
port for  an  indefinite  period  of  time."  Apart  from  the  sound- 
ness or  unsoundness  of  such  views,  these  uncontrovertible  facts 
stand  out  as  the  most  remarkable  in  our  constitutional  his- 
tory. The  greatest  of  the  slaveholding  states  really  won  the 
Northwest  from  Great  Britain  during  the  war  of  the  Revolu- 
tion; when  she  ceded  it  on  March  I,  1784,  "Virginia  gave  up  Virginia's 
a  magnificent  and  princely  territory  of  which  she  was  actually  D 
in  possession."  Instantly  her  leading  statesman  in  Congress, 
Jefferson,  proposed  a  form  of  territorial  government  to  be  based 
on  the  stipulation  "that,  after  the  year  1800,  there  shall  be 
neither  slavery  nor  involuntary  servitude  in  any  of  the  said 
states,  otherwise  than  in  punishment  of  crimes,  whereof  the 
party  shall  have  been  convicted";  in  1787  the  Ordinance  was 
passed  with  that  stipulation  as  its  corner-stone,  the  same  having 

1  Sparks,  ix,  385. 

9  See  Benton's  Thirty  Years'  View,  i,  134. 


270 


THE  AMERICAN  CONSTITUTION 


[Cn. 


The  Northwest 
dedicated  by 
the  South  to 
freedom. 


Jefferson's 
plan  for  the 
extinction  of 
slavery. 


been  put  into  it  by  amendment,  after  the  first  reading,  at  the 
suggestion  of  the  Southern  States,  which  voted  for  it  unanim- 
ously. As  Pennsylvania  and  three  states  of  New  England  were 
absent,  the  passsage  of  the  Ordinance  without  the  votes  of  the 
Southern  States  was  an  impossibility.1 

How  can  the  fact  be  explained  that  the  slaveholding  South 
thus  deliberately  dedicated  to  the  cause  of  freedom  the  vast 
domain  out  of  which  five  great  states  were  to  arise?  What 
was  the  influence  that  induced  Virginia,  after  dedicating 
this  princely  heritage  to  the  new  nationality,  to  propose  that 
her  own  citizens  should  not  be  permitted  to  settle  within 
its  limits  if  they  took  their  slaves  with  them?  The  answer, 
and  the  only  one,  has  been  given  by  a  clear-visioned  and 
unsectional  Northern  historian.  John  Fiske2  hit  the  mark 
when  he  said:  "It  was  not  the  nomenclature  that  stood 
in  the  way  of  Jefferson's  scheme,  but  the  wholesale  way  in 
which  he  tried  to  deal  with  the  slavery  question.  He  wished 
to  hem  in  the  probable  extension  of  slavery  by  an  impassable 
barrier,  and  accordingly  he  not  only  provided  that  it  should 
be  extinguished  in  the  Northwestern  Territory  after  the  year 
1800,  but  at  the  same  time  his  anti-slavery  ardor  led  him  to 
try  to  extend  the  national  domain  southward.  He  did  his  best 
to  persuade  the  legislature  of  Virginia  to  crown  its  work  by 
giving  up  Kentucky  to  the  United  States,  and  he  urged  that 
North  Carolina  and  Georgia  should  also  cede  their  western 
territories.  As  for  South  Carolina,  she  was  shut  in  between  the 
two  neighboring  states,  in  such  wise  that  her  western  claims 
were  vague  and  barren.  Jefferson  would  thus  have  drawn  a 
north-and-south  line  from  Lake  Erie  down  to  the  Spanish 
border  of  the  Floridas,  and  west  of  this  line  he  would  have  had 
all  negro  slavery  end  with  the  eighteenth  century.3  The  policy 
of  restricting  slavery,  so  as  to  let  it  die  a  natural  death  within 
a  narrowly  confined  area,  —  the  policy  to  sustain  which  Mr. 
Lincoln  was  elected  President,  in  1860,  —  was  thus  first 


1  Such  is  Bancroft's  testimony, 
ii,  112,  115-116. 

»  The  Critical  Period,  198. 

*  "The  passage  relating  to  the 
slave  trade  was  stricken  out  from 
the  original  draft  of  the  Declaration 
of  Independence,  as  Jefferson  testi- 


fied, not  only  because  of  'deference 
to  Southern  delegates/  but  'be- 
cause our  Northern  brethren,  being 
considerable  carriers  of  slaves  to 
others,  were  a  little  sensitive  on  that 
point.'  —  Ed."  Johnston,  Am.  Pol. 
Hist.,  p.  45,  note  I.  (Woodburn  ed.) 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  271 

definitely  outlined  by  Jefferson  in  1784.  It  was  the  policy 
of  forbidding  slavery  in  the  national  territory.  Had  this 
policy  succeeded  then,  it  would  have  been  an  ounce  of  pre-  It  failed 
vention  worth  many  a  pound  of  cure.  But  it  failed  because 
of  its  largeness,  because  it  had  too  many  elements  to  deal 
with." 

Its  first  effort,  however,  was  completely  successful.  Jefferson 
—  supported  by  the  strong  anti-slavery  feeling  existing  in  Vir- 
ginia and  North  Carolina  at  the  close  of  the  eighteenth  cen- 
tury —  was  able,  with  the  help  of  such  men  as  George  Mason, 
Grayson,  and  Chancellor  Wythe  (who  emancipated  his  slaves 
towards  the  close  of  his  life),  to  induce  the  South  to  dedicate 
the  Northwestern  Territory  to  freedom.  But  after  the  line  was 
once  drawn,  after  the  Union  was  once  divided  into  two  great 
areas,  —  the  one  dedicated  to  slavery,  the  other  to  freedom,  — 
the  irrepressible  conflict  became  inevitable.  Out  of  that  condi-  The  irrepress- 
tion  of  things  grew  up  a  contest  between  the  free  and  the  slave  lble  conflic 
states  for  control  of  the  Government,  the  South  wishing  to 
extend  the  area  of  slavery  by  the  admission  of  new  slave  states, 
the  North  seeking  to  confine  the  institution  to  the  localities 
in  which  it  already  existed,  while  the  Abolitionists  of  the 
North  wished  to  extinguish  it  altogether. 

From  the  time  "the  compromises"  were  entered  into  in  the  A  slave  state 
Federal  Convention  of  1787,  the  opposing  forces  rested  on  their  JJjjJj^J6 
arms  under  a  rule  which  admitted  a  slave  state  and  a  free  by  turns, 
state  by  turns,  so  as  to  preserve  the  balance  of  power  in  Con- 
gress as  the  new  Constitution  had  fixed  it  at  the  outset.  The 
first  impulse  of  the  Convention  was  to  admit  only  those  new 
states  "lawfully  arising  within  the  limits  of  the  United  States," 
with  the  consent  of  two  thirds  of  each  House  of  Congress. 
Gouverneur  Morris  widened  that  idea,  however,  when  he  pro- 
posed that  "new  states  may  be  admitted  by  the  legislature 
into  the  Union,"  with  the  clear  understanding  that  a  majority 
vote  might  introduce  foreign  territory  as  a  state  into  the 
Union.   But  when  Maryland  moved  to  grant  unlimited  legis-  introduction 
lative  power  to  dismember  old  states,  she  was  supported  only  of  fo«fen 
by  Delaware  and  New  Jersey.    In  order  to  remove  from  Ver- 
mont the  necessity  of  applying  to  New  York  for  consent  to 
enter  the  Union,  for  the  reason  that  she  had  once  been  included 
within  her  "limits,"  that  word  was  supplanted  by  the  word 


272 


THE  AMERICAN  CONSTITUTION 


[CH. 


The  first 
census,  1790: 
freemen  and 
slaves. 


"Persons  held 
to  service  or 
labor." 


Gradual 
abolition  of 
slavery  in 
the  North. 


Admission  of 
Vermont,  1791. 


"jurisdiction,"  which  obviated  the  difficulty.1  Thus  the  way 
was  opened  for  the  entry  of  the  first  new  state,  Vermont,  in 
1791. 

From  the  first  census,  taken  the  year  before,  we  learn  that 
the  population  of  the  United  States  was  3,929,326,  in  which 
were  included  697,681  slaves.  Of  that  total,  Virginia  possessed 
292,627.  Next  came  South  Carolina,  closely  followed  by  Mary- 
land and  North  Carolina.2  As  originally  established  in  the  col- 
onies, slavery  everywhere  existed  by  custom  and  not  by  law. 
The  state  statutes  subsequently  passed  on  the  subject  simply 
regulated  a  preexisting  relation.  While  the  slaves  had  come 
as  chattels,  and  not  as  persons  having  a  standing  in  law,  which 
fastened  the  condition  upon  their  children,  their  status  was  not 
defined  in  such  abject  terms  by  the  new  Constitution.  In  it 
slaves  were  described  as  "persons  held  to  service  or  labor, 
under  the  laws  of  any  state."  They  were  thus  recognized  as 
persons  from  whom  the  positive  laws  of  some  of  the  states 
withheld  personal  rights  for  the  time  being.  In  response  to  that 
feeling,  most  of  the  Northern  States  were  already  on  the  way 
toward  the  abolition  of  slavery.  Vermont  never  permitted  it. 
Massachusetts  had  eliminated  it  by  a  judicial  decree  that  held 
it  was  in  conflict  with  her  new  constitution  of  1780.  While 
other  states  north  of  Virginia  finally  abolished  it,  it  was  done 
so  gradually  that  in  1860  a  last  remnant  survived  in  the  form 
of  eighteen  apprentices  for  life  in  New  Jersey.  Moving  in 
harmony  with  the  Wilberforce  propaganda  against  the  slave 
trade,  the  Constitution  had  fixed  1808  as  the  certain  limit  of  its 
life;  and  by  1804  all  of  the  states  had  passed  laws  forbidding 
the  importation  of  slaves  from  abroad.  When  South  Carolina 
repealed  such  an  act,  Congress,  in  1804,  would  have  imposed 
the  ten  dollars  tax  at  once,  but  for  assurances  that  in  due  time 
the  prohibiting  act  would  be  renewed. 

Such  were  the  general  conditions  existing  at  or  about  the 
time  of  the  admission  of  Vermont,  —  "the  New  Hampshire 


1  Madison  Papers,  ii,  794,  86 it 
903,    1224,    1240;   iii,    1456,    1458, 
1462,  1558,  1589,  1620. 

2  See   A    Century   of  Population 
Growth  in  the   United  States,  1790- 
1900,  p.  47.    There  it  is  stated  that 
"an    examination   of   the   original 


manuscript  returns  shows  that  there 
never  were  any  slaves  in  Vermont. 
The  original  error  occurred  in  pre- 
paring the  results  for  publication, 
when  1 6  persons,  returned  as  'free 
colored/  were  classified  as  'slave.'  " 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  273 

grants,"  —  territory  which  both  New  Hampshire  and  New 

York  had  claimed.  While  the  admission  of  Vermont  was  being 

discussed  in  the  old  Congress  in  1782,  Madison  said  that  the 

opposition  to  it  which  came  from  Virginia,  North  Carolina, 

South  Carolina,  and  Georgia  was  based  on  these  grounds: 

"  ist.  An  habitual  jealousy  of  a  predominance  of  Eastern  inter- 

est.   2nd.  The  opposition  expected  from  Vermont  to  Western 

claims.   3rd.  The  inexpediency  of  admitting  so  unimportant  a 

state  to  an  equal  vote  in  deciding  on  peace,  and  all  the  other 

grand  interests  of  the  Union  now  depending.    4th.  The  influ- 

ence of  the  example  on  a  premature  dismemberment  of  the 

other  states."  l   Such  considerations,  potent  in  their  influence 

on  the  politics  of  the  old  Congress,  were  now  overruled;  and 

Vermont,  the  only  state  that  had  never  permitted  slavery,  a 

state  sovereign  and  independent  during  the  Revolution,  was 

admitted  in  1791,  as  such,  and  not  as  formed  out  of  any  other 

state.  Thus  a  precedent  was  made  for  the  admission  at  a  later  Precedent  for 

time  of  Texas,  which  had  established  its  independence,  and  was 

admitted  into  the  Union,  despite  the  fact  that  it  was  not  carved 

out  of  the  territory  of  any  state  belonging  thereto.    As  large 

areas  of  foreign  territory  were  to  be  purchased,  it  was  import- 

ant to  settle  the  fact  that  independent  commonwealths  exist- 

ing or  built  up  thereon  could  be  admitted  into  the  Union  as 

states.   The  yoke-fellow  of  Vermont  was  Kentucky,  admitted  Kentucky 


in  1792,  with  a  slave  population  estimated  in  1790  at  12,430, 


out  of  a  total  of  73,677.  To  the  jurist  the  admission  of  Ken- 
tucky is  of  special  interest  because  of  the  compact  entered 
into  between  Virginia  and  Kentucky,  which  provided  that  all 
private  rights  and  interests  in  lands  within  Kentucky,  derived 
from  the  laws  of  Virginia  prior  to  the  separation,  should  remain 
"valid  and  secure"  under  the  laws  of  Kentucky,  and  should  be 
determined  by  the  laws  existing  on  December  18,  1789,  in  Vir- 
ginia. Thus  by  compact,  authorized  by  Article  I,  Section  10, 
Clause  3,  of  the  Constitution,  a  mother  state  has  been  able  to 
perpetuate  a  part  of  her  code  of  land  law  in  a  younger  state 
formed  from  her  domain.2  The  admission  of  Tennessee  in  1796 
was  counterbalanced  by  the  admission  of  Ohio  in  1803,  —  the  1803. 

1  Madison  Papers,  i,  123.  United  States,  in   which  the   con- 

8  The  author  is  now  engaged  in      struction   of   that  compact    is  an 
a  case  in  the  Supreme  Court  of  the      important  factor. 


274 


Louisiana 
Purchase, 
1803. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Jefferson's 

mental 

difficulty. 


Idea  of 

nationality 

promoted. 


Article  in 
of  the  treaty 
of  1803. 


former  being  carved  from  the  slave  soil  of  North  Carolina,  the 
latter  from  the  free  soil  of  the  Northwest  Territory,  which  thus 
contributed  its  first  state. 

During  the  ten  years  that  were  to  intervene  before  another 
state  was  admitted,  the  famous  Louisiana  Purchase,  made  by 
Jefferson  from  Napoleon  in  1803,  doubled  the  national  domain 
by  an  addition  of  1,124,685  square  miles,  and  secured  to  us  the 
free  navigation  of  the  Mississippi,  which  French  and  Spanish 
intrigue  had  demonstrated  as  essential  to  the  retention  of  the 
permanent  loyalty  of  the  West.  From  the  end  of  the  Revolu- 
tionary War  down  to  about  1825,  the  danger  of  European 
aggression  was  a  serious  factor  in  the  politics  of  this  country. 
Out  of  that  danger  grew  the  famous  Monroe  Doctrine,  designed 
to  protect  us  as  far  as  possible  from  such  complications.1  Con- 
stitutional lawyers  of  to-day  do  not  consider  seriously  Jeffer- 
son's mental  difficulty  as  to  the  right  of  this  government  to 
acquire  new  territory  and  to  carve  new  states  out  of  the  same. 
In  seizing  a  great  opportunity,  which  gave  us  a  real  place  in  the 
family  of  nations,  he  did  well  to  ignore  a  doubt  that  should 
never  have  existed.2  The  purchase  was  a  brilliant  act  of 
diplomacy.  "The  news  of  the  transfer  of  Louisiana  was  like 
a  thunder-stroke  for  the  cabinet  at  Madrid,  who  then  per- 
ceived the  enormous  fault  it  had  committed  in  sacrificing  the 
safety  of  Mexico.  Florida,  enclosed  on  both  sides  by  the  United 
States,  was  separated  in  the  middle  from  the  Spanish  domin- 
ions, and  would  fall  on  the  first  occasion  into  the  hands  of  its 
neighbors."  3  No  other  event  in  our  national  history  has  done 
more  to  promote  the  idea  of  nationality  than  this  purchase, 
made  by  the  leader  of  the  states'  rights  school,  in  disregard  of 
his  own  principles.  The  purchase  of  this  territory  beyond  our 
original  limits,  and  the  carving  out  of  it  of  new  states  armed 
with  the  power  to  determine  their  own  institutions,  whether 
they  should  be  slave  or  free,  led  to  a  new  phase  of  the  slavery 
controversy,  and  to  the  final  triumph  of  the  congressional  and 
national  powers  arrayed  against  it.  Article  in  of  the  treaty  of 


1  See  Taylor's  International  Pub- 
lic Law,  140-152,  416-418. 

2  As  to  the  rights  of  the  House 
of  Representatives  when  a  purchase 
is    made  of   foreign  territory,   see 
Ibid.  392.  As  to  the  right  of  the  na- 


tion to  acquire  and  hold  such  terri- 
tory, see  Downes  v.  Bid  well,  182 
U.  S.  244. 

*  Johnston,  Am.  Political  History, 
part  i,  p.  265. 


IX.]        AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  275 

April  30,  1803,  provided  that  "the  inhabitants  of  the  ceded 
territory  shall  be  incorporated  in  the  Union  of  the  United 
States,  and  admitted  as  soon  as  possible,  according  to  the 
principles  of  the  Federal  Constitution,  to  the  enjoyment  of  all 
rights,  advantages,  and  immunities  of  citizens  of  the  United 
States;  and  in  the  mean  time  they  shall  be  maintained  and  pro- 
tected in  the  free  enjoyment  of  their  liberty,  property,  and  the 
religion  which  they  profess."  An  Act  was  approved  on  October 
31,  1803,  "to  enable  the  President  of  the  United  States  to 
take  possession  of  the  territory  ceded  by  France  to  the  United 
States  by  the  treaty  concluded  at  Paris  on  the  3Oth  of  April 
last,  and  for  the  temporary  government  thereof."   On  March 
26,  1804,  an  Act  was  passed  dividing  the  "Province  of  Louisi-  Province  of 
ana"  into  Orleans  Territory  on  the  south  and  the  District  of 
Louisiana  to  the  north.  That  Act  extended  over  the  Territory 
of  Orleans  a  large  number  of  the  general  laws  of  this  country, 
and  provided  a  form  of  government,  for  the  purposes  of  which 
the  District  of  Louisiana  was  attached  to  the  Territory  of  Indi- 
ana, which  had  been  carved  out  of  the  Northwest  Territory. 
The  territorial  government  of  Orleans,  with  the  exception  of  the 
prohibition  of  slavery,  was  a  substantial  copy  of  the  colonial 
system  created  by  the  Ordinance  of  1787.   On  March  2,  1805, 
an  Act  was  approved  whose  first  section  expressly  provided 
that  the  Territory  of  Orleans  "shall  be  entitled  to  and  enjoy 
all  the  rights,  privileges,  and  advantages  secured  by  the  said 
ordinance,  and  now  enjoyed  by  the  people  of  the  Mississippi 
Territory,"  to  which  it  had  been  extended.1    The  upper  part 
of  the  Province  of  Louisiana,  described  in  the  Act  of  March  26, 

1804,  as  the  District  of  Louisiana,  and  in  the  Act  of  March  3, 

1805,  as  the  Territory  of  Louisiana,  was  organized  as  the  Terri- 
tory of  Missouri  on  June  4,  i8i2.2   By  that  Act,  although  the  Territory 
Ordinance  of  1787  was  not  in  express  terms  extended  over  the  of  Mlfso^ri 
territory,  —  probably  on  account  of  the  slavery  agitation,  —  June  4, 1812. 
the  inhabitants  were  accorded  substantially  all  the  rights  of  the 
inhabitants  of  the  Northwest  Territory.    By  the  Qth  section 
citizenship  was  in  effect  recognized,  while  the  I4th  contained 

an  extended  declaration  of  the  rights  secured  to  the  people  of 
the  territory.  When  the  Americans  took  possession  in  Decem- 

1  Stat.  at  Large,  p.  550,  chap.  28.      Downes  v.  Bidwell,  182  U.  S.  327- 

2  Ibid.,  p.  743,  chap.  95.  See  also      334. 


276 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Civil  code 
based  on 
Code 
Napoleon. 


Positive  law 
defined. 


Orleans  Terri- 
tory admitted 
as  a  state,  1812. 


ber,  1803,  Laussat,  the  French  colonial  prefect,  declared  that 
justice  was  then  administered  ''worse  than  in  Turkey."  But 
an  improvement  followed  the  new  domination;  and  in  1808 
the  territorial  legislature  in  Orleans  adopted  a  civil  code, 
based  to  a  considerable  extent  on  the  Code  Napoteon.1  Within 
the  vast  territory  thus  acquired  the  new  masters  found  slavery 
already  established  by  custom  recognized  by  French  and 
Spanish  law,  and  as  Congress  tacitly  recognized  existing  con- 
ditions by  failing  to  disturb  them,  slavery  continued  to  be 
legal,  and  became  universal.  Here  attention  should  be  directed 
to  a  serious  confusion  of  thought  into  which  an  eminent  writer 
on  this  subject  has  fallen  from  a  failure  to  understand  what 
really  constitutes  positive  law.  Alexander  Johnston,  in  his 
"Political  History,"  has  said:  "It  may  be  laid  down  as  a  fun- 
damental proposition,  that  negro  slavery  in  the  colonies  never 
existed  or  was  originally  established  by  law,  but  that  it  rested 
wholly  on  custom.  The  dictum,  so  often  quoted,  that  slavery, 
being  a  breach  of  natural  right,  can  be  valid  only  by  positive 
law,  is  not  true:  it  is  rather  true  that  slavery,  where  it  existed, 
being  the  creature  of  custom,  required  positive  law  to  abolish 
or  control  it."  2  It  is  now  well  settled  that  from  its  organiza- 
tion the  state,  by  express  or  tacit  recognition,  adopts  as  laws, 
not  only  the  rules  of  equity  but  the  entire  body  of  customs  that 
come  up  to  a  certain  standard  of  general  reception  and  useful- 
ness, in  the  absence  of  any  specific  rule  of  written  law.  Hol- 
land has  summed  up  the  whole  matter  in  the  statement  that 
"the  humblest  village  custom  is  a  law  which  complies  with  the 
requirement  of  being  enforced  by  the  sovereign."  8  In  other 
words,  any  preexisting  custom  which  the  state  tacitly  recog- 
nizes and  enforces  by  its  sovereign  authority  is  positive  law. 
In  1810  Louisiana  was  called  "Orleans  Territory,"  the  name 
"Louisiana  Territory"  being  then  applied  to  the  remainder  of 
the  Louisiana  Purchase,  still  unorganized.  By  an  Act  of  Con- 
gress of  1811  the  inhabitants  of  the  former  were  authorized 
to  form  a  constitution,  with  the  view  to  the  establishment  of 
a  state  government.  The  constitution  of  1812  was  framed  and 
adopted;  and  in  April  of  that  year  Congress  passed  an  Act 
admitting  Louisiana,  as  a  slave  state,  into  the  Union. 

1  Ci.  Taylor,  The  Science  of  Juris-          'Holland,     Jurisprudence,     51; 
prudence,  164-165,  174.  Taylor,    The  Science  of  Jurisprud- 

*  Am.  Political  History, part  ii,p.i.      ence,  518.    ,,  .^  .- 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  277 

The  general  colonial  scheme  embodied  in  the  Ordinance  of  Colonial 
1787,  excepting  only  the  anti-slavery  clause,  was  the  model 
upon  which  all  the  territories  were  subsequently  organized. 
On  August  7,  1789,  an  Act  of  Congress  was  passed  recognizing 
and  confirming  the  Ordinance  with  such  slight  modifications 
as  were  necessary  to  make  it  conform  to  the  new  powers  of  the 
President  and  Senate.  When  the  territory  south  of  the  Ohio 
came  to  be  organized,  stipulations  were  of  course  made  by  the 
ceding  states  that  slavery  should  not  be  prohibited.  In  the 
organization  of  the  five  states  north  of  the  Ohio,  the  privileges 
granted  by  the  Ordinance  were  embodied  in  their  constitu- 
tions, usually  in  a  bill  of  rights.  So  rapid  was  the  growth 
of  population  in  the  Northwest  Territory  that  Congress,  in 
1800,  divided  it,  the  line  running  north  from  the  junction  of  the 
Kentucky  with  the  Ohio,  all  west  of  which  was  to  be  known 
as  the  Indiana  Territory.  In  that  new  division,  in  1802,  a  con- 
vention, presided  over  by  William  H.  Harrison,  attempted  to  Attempt  to 
legalize  slavery,  through  a  memorial  to  Congress  asking  a  £f:^a^ve 
temporary  suspension  of  the  sixth  article.  But  a  select  com-  Territory, 
mittee,  with  John  Randolph  as  chairman,  reported  that  such 
action  would  be  both  dangerous  and  inexpedient.  While  in 
1805-07  successive  resolutions  to  the  same  effect  from  Gov- 
ernor Harrison  and  the  territorial  legislature  were  respectfully 
considered,  the  matter  was  brought  to  an  end  by  an  adverse 
report  from  a  new  committee  in  November,  1807.  Thus  it  was 
settled  that  Indiana  was  to  be  admitted  as  a  free  state,  as 
she  was  on  April  19,  1816.  Ohio  had  been  erected  into  a  separ-  Admitted  as 
ate  territory  in  1800;  and  Illinois  was  set  off  in  1809,  leaving 
Indiana  Territory  with  its  present  boundaries.  An  Act  of  Con- 
gress was  passed  April  7,  1798,  organizing  the  Territory  of 
Mississippi,  —  its  southern  boundary  being  parallel  31  de- 
grees, its  northern  a  line  due  east  from  the  mouth  of  the  Yazoo 
to  the  Chattahoochee.  As  this  territory  had  been  annexed 
by  the  British  King  to  West  Florida,  it  was  claimed  as  common 
property  by  the  Congress  of  the  Confederation  under  the 
treaty  of  peace  of  1783.  As  Spain  by  the  treaty  of  1795 l 
abandoned  all  claims  to  this  part  of  the  territory,  it  was 
organized  under  the  Act  of  1798,  despite  Georgia's  opposing 

*  As  to  the  boundaries  fixed  by      Real,  Oct.  27,  1795,  see  Fuller,  The 
the  treaty  signed  at  San  Lorenzo  el      Purchase  of  Florida,  73  sq. 


278 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Mississippi 
admitted  in 
1817. 


Illinois 
admitted 

in  1818. 


Alabama 
admitted 
in  1819. 


claims,  which  were  finally  adjusted  by  commissioners  under  the 
Act  of  April  24,  1802.  It  was  then  arranged  that  Georgia  was 
to  cede  all  her  western  claims  for  a  substantial  consideration; 
all  previous  titles  were  to  hold  good ;  and  slavery  was  not  to  be 
prohibited  in  the  new  territory.  After  that  agreement  had  been 
ratified  by  Georgia  and  the  United  States,  the  ceded  territory 
was  added  to  the  Mississippi  Territory  by  Act  of  March  27, 
1804,  subject  to  a  provision  for  the  extinguishment  of  Indian 
titles  in  Georgia,  by  the  United  States.  In  1812  American 
troops  occupied  Spanish  West  Florida,  and  the  district  east 
of  Pearl  River  and  south  of  latitude  31  degrees  was  added  to 
the  Mississippi  Territory,  which  was  divided  by  the  present 
line  between  Alabama  and  Mississippi  in  1817.  On  Decem- 
ber 10  of  that  year  Mississippi  was  admitted  as  a  slave  state. 
The  statement  made  heretofore  that  Indiana  was  admitted  as 
a  free  state  must  be  attended  with  the  explanation  that  in 
1807  her  legislature  enacted  laws  permitting  the  owners  of 
slaves  to  bring  them  into  the  territory,  register  them,  and 
hold  them  to  service  under  a  certain  kind  of  contract  specially 
devised  for  that  purpose.  Illinois,  being  then  a  part  of  Indiana 
Territory,  lived  on  under  those  laws  until  her  admission  as 
a  state  in  1818,  when  she  provided  in  her  constitution  that 
" existing  contracts"  should  be  valid.  Finally  in  1822  an  anti- 
slavery  man  was  elected  governor;  and  the  result  of  a  vote  in 
1823-24  was  the  abolition  of  future  contracts  for  service  made 
out  of  the  state,  or  for  more  than  one  year.  Gradually  the  dis- 
guised slavery  thus  created  by  contract  was  abolished  in 
both  states.  On  March  2,  1819,  an  Act  was  passed  "to  enable 
the  people  of  Alabama  Territory  to  form  a  constitution  and 
state  government,"  and  on  December  14  of  that  year  she  was 
admitted  as  a  slave  state.  The  settlement  of  Maine  goes  back 
to  1626,  when  both  Alexander  and  Gorges  were  granted  lands 
by  the  Plymouth  Company,  the  latter  receiving  in  1639  a 
royal  charter  to  reinforce  his  claims.  As  Charles  I  favored  the 
Gorges  heirs  against  Massachusetts,  whose  power  over  Maine 
had  been  in  abeyance  for  some  years  prior  to  1668,  that  state, 
in  1678,  in  order  to  strengthen  its  hold,  bought  off  the  Gorges 
claimants.  When  the  Revolution  of  1688  brought  to  Massa- 
chusetts a  new  charter,  it  so  enlarged  her  territory  southward 
as  to  take  in  all  Plymouth,  and  eastward  as  to  embrace  Maine 


IX.]        AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  279 

(Sagadahoc)  and  Nova  Scotia.  Henceforth  Maine,  including  Maine 
Sagadahoc,  that  is  all  land  eastward  to  the  Saint  Croix,  re- 
mained  a  part  of  Massachusetts  until  March  15,  1820,  when 
it  was  admitted  as  a  free  state.1  The  prelude  to  that  event 
was  the  "Ohio  fever"  of  1815-16,  by  which  the  state  lost 
fifteen  thousand  of  its  population.  By  that  time  the  question 
of  separation  had  become  a  party  issue,  the  Federalists  up- 
holding the  claims  of  Massachusetts,  the  Republicans  contend- 
ing for  independence. 

A  brief  and  consecutive  review  has  now  been  made  of  the  The  Missouri 
incorporation  into  the  Union  of  the  ten  new  states  —  five  free 
and  five  slave  —  that  preceded  the  admission  of  Missouri. 
As  we  look  upon  the  hostile  array,  with  Vermont,  Ohio,  In- 
diana, Illinois,  and  Maine,  on  the  one  hand,  and  Kentucky, 
Tennessee,  Louisiana,  Mississippi,  and  Alabama  on  the  other, 
it  is  hard  to  put  aside  this  weighty  statement:  "The  conven- 
tion of  1787,  whose  work  and  plans  were  mainly  confined  to  the 
fringe  of  states  along  the  Atlantic  Coast,  had  really  joined  two 
nations,  a  slaveholding  nation  and  one  which  only  tolerated 
slavery,  into  one;  but  the  union  was  physical,  rather  than 
chemical,  and  the  two  sections  retained  distinct  interests,  feel- 
ings, and  peculiarities.  As  both  spread  beyond  the  Alleghan- 
ies  to  the  west,  the  broad  river  Ohio  lay  in  waiting  to  be  the 
natural  boundary  between  the  states  in  which  slavery  should 
be  legal  and  those  in  which  it  should  be  illegal.  When  the  tide 
of  emigration  began  to  pour  across  the  Mississippi  and  fill 
the  Louisiana  Purchase,  the  dividing-line  was  lost  and  the  con- 
flict became  inevitable."2  Jefferson,  who  brought  to  us  the  new  Jefferson's 
arena  of  conflict,  clearly  foresaw  what  that  conflict  was  to  be.  forebodmss. 
He  wrote:  "The  Missouri  question  is  the  most  portentous 
which  has  ever  threatened  the  Union.  In  the  gloomiest  hour 
of  the  Revolutionary  War  I  never  had  apprehensions  equal  to 
those  I  feel  from  this  source."  His  eagle  eye  could  not  fail  to 
see  that  in  the  new  realm  beyond  the  Mississippi  the  battle  for  Battle  for 
slavery  was  to  be  fought  and  lost.  Reference  has  been  made  f ave,?uto  be , 

,         /  .        .  e    1  fought  beyond 

already  to  the  organization  of  the  upper  part  of  the  Louisiana  the  Mississippi. 
Purchase  into  the  Territory  of  Missouri  by  the  Act  of  June  4, 
1812,  whose  sixteenth  section  recognized  the  custom,  validated 

1  Cf.  Andrews,  Hist,  of  the  U.  5.,          2  Johnston,  Am.  Political  History, 
i,  45,  46,  75,  81.  part  ii,  p.  no. 


280 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Suddenness  of 
the  conflict. 


Terms  of 
the  Missouri 
Compromise. 


by  French  and  Spanish  law,  upon  which  slavery  rested,  by  con- 
tinuing the  territorial  laws  of  Louisiana  in  the  new  Territory 
of  Missouri.  Furthermore  reliance  was  placed  upon  the  third 
article  of  the  treaty,  which  provided  certain  guaranties  here- 
tofore set  forth.  The  application  for  admission  into  the  Union 
as  a  slave  state,  early  in  1818,  of  the  most  populous  part  of 
the  Missouri  Territory,  in  which  the  flourishing  institution 
of  slavery  was  thus  intrenched,  precipitated  the  consideration 
of  the  status  of  the  institution  beyond  the  Mississippi,  and 
involved  Congress  in  a  prolonged,  angry,  and  historic  debate. 
The  suddenness  of  the  conflict  startled  the  country  "like  a 
fire-bell  in  the  night,"  —  the  words  of  Jefferson.  When  on 
February  13,  1819,  the  House  went  into  Committee  of  the 
Whole  upon  the  enabling  act,  Tallmadge  of  New  York  offered 
this  amendment:  "And  provided,  also,  that  the  further  intro- 
duction of  slavery  or  involuntary  servitude  be  prohibited,  ex- 
cept for  the  punishment  of  crime,  whereof  the  party  shall  be 
duly  convicted;  and  that  all  children  of  slaves,  born  within 
the  said  state  after  the  admission  thereof  into  the  Union,  shall 
be  free,  but  may  be  held  to  service  until  the  age  of  twenty-five 
years."  The  surface  meaning  of  that  amendment  was  that 
the  admission  of  Missouri  as  a  free  state  should  now  offset 
that  of  Alabama.  But  there  was  a  deeper  meaning.  Its  ad- 
vocates contended  —  admitting  that  slavery  did  exist  in 
the  territory  by  virtue  of  positive  law  tacitly  recognized  by 
Congress  —  that  it  was  entirely  within  its  province  to  say, 
as  the  entire  subject-matter  was  under  its  control,  that  the 
territory  must  enter  the  Union  as  a  free  state  or  not  at  all. 
The  outcome  was  the  famous  Missouri  Compromise  of  1820, 
in  which  the  Senate  agreed  to  permit  the  Maine  and  Missouri 
bills  to  be  voted  on  separately;  the  House  agreed  to  give  up 
the  Tallmadge  proviso,  and  both  Houses  agreed  that  Missouri 
should  be  admitted,  with  the  express  understanding  "that  in 
all  that  territory  ceded  by  France  to  the  United  States,  under 
the  name  of  Louisiana,  which  lies  north  of  36  degrees  30  min- 
utes north  latitude,  excepting  only  such  part  thereof  as  is  in- 
cluded within  the  limits  of  the  state  contemplated  by  this  Act, 
slavery  and  involuntary  servitude,  otherwise  than  in  the  pun- 
ishment of  crime,  whereof  the  party  shall  have  been  duly  con- 
victed, shall  be  and  is  hereby  forever  prohibited."  Such  was 


IX.]        AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  281 

the  compromise  embodied  in  the  amendment  of  the  pro- 
Southern  Senator  Thomas  of  Illinois,  of  which  Henry  Clay 
of  Kentucky  was  the  potent,  zealous,  and  compelling  cham- 
pion. While  in  the  case  of  Missouri,  admitted  in  1821,  slavery  Missouri 
won  the  victory,  it  was  at  the  cost  of  the  pledge  that  the  vast  ^  ^"^ 
bulk  of  the  Louisiana  Purchase  should  be  forever  dedicated 
to  freedom.  That  pledge  was  the  death-knell  of  the  old  system 
of  balance  between  the  slave  states  and  the  free  states,  as  it 
made  inevitable  the  admission  of  a  larger  number  of  the  latter. 
And  yet,  while  limits  were  thus  set  to  the  extension  of  the  area 
to  be  occupied  by  slavery,  the  view  was  general  that  each  state 
was  absolutely  sovereign  over  it  within  its  own  borders ;  that 
responsibility  for  it  and  its  abuses  ended  in  each  state  with  its 
own  citizens.  Such  was  the  real  undertone  of  the  doctrine  of  Extreme 
state  sovereignty  in  the  extreme  form  in  which  it  was  taught 
by  Calhoun,  an  extreme  culminating  at  last  in  the  entirely 
illogical  and  indefensible  dogma  of  Nullification.  Ere  long, 
quite  a  contrary  view  became  common  in  the  North,  largely 
through  the  influence  of  William  Lloyd  Garrison,  who  estab- 
lished in  1831  a  weekly  paper  called  "The  Liberator,"  which 
was  devoted  to  the  entire  and  immediate  abolition  of  African 
slavery  in  America.  In  demanding  "immediate  and  uncondi- 
tional emancipation,"  Garrison  claimed  that  the  question  at 
issue  was  a  national  one ;  that  the  whole  country,  and  not  the 
South  only,  was  guilty  in  tolerating  what  he  called  a  curse. 
Thus  was  the  real  issue  finally  made  up. 

Fifteen  years  were  to  pass  by  before  the  admission  of  the  Federalists  and 
next  state, — Arkansas,  in  1836.  During  that  interval  there  Republicans, 
was  a  transformation  in  party  organization.  At  the  end  of  the 
Revolution  there  was  but  one  party  in  the  United  States, 
the  American  Whigs ;  at  the  end  of  the  Federal  Convention  of 
1787,  when  the  question  at  issue  was  whether  the  new  Consti- 
tution should  be  ratified  by  the  states,  there  were  two.  The 
one  was  composed  of  the  Federalists,  who,  desiring  a  really 
national  government,  were  urging  the  people  to  accept  the 
work  of  the  Convention ;  the  other  was  composed  of  those  who 
were  wedded  to  the  old  provincial  idea  and  distrustful  of  the 
new  experiment  as  a  menace  to  their  local  liberties,  known  as 
Anti-Federalists.1  The  name  afterwards  assumed  by  the  Anti- 

1  "We  must  be  careful  not  to  confuse  the  Anti-Federalists  with  the 


282 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Hamilton 
and  Jefferson 
as  leaders. 


"Era  of  good 
feeling,"  1820. 


Federalists,  who,  during  the  year  1792,  had  become  cemented 
into  an  organized  body  through  their  efforts  in  resisting  the 
Federalists,  was  Republican  from  about  that  time  down  to 
about  I828.1  As  Hamilton  was,  at  the  outset,  distinctly  the 
leader  of  the  former,  so  Jefferson  was  distinctly  the  leader  of 
the  latter.  Not  long  after  Jefferson's  return  from  the  opening 
scenes  of  the  French  Revolution,  he  was  ready  to  hint  that 
people  of  the  Hamilton  school  were,  under  the  cloak  of  broad 
construction,  drifting  toward  monarchy.  Before  the  summer 
of  1792  he  was  able  to  describe  in  a  general  way  the  opposition 
to  Hamilton  as  a  "republican"  party  in  contrast  to  the 
"monarchical"  Federalists.  In  a  letter  to  Washington,  of  May 
13  of  that  year,  he  authoritatively  claimed  the  name  by  say- 
ing: "The  Republican  party,  who  wish  to  preserve  the  Govern- 
ment in  its  present  form,  are  fewer  in  number  [than  the  mon- 
archical Federalists]."  The  disappearance  of  the  Federal  party 
between  1815  and  1820  left  the  Republicans  masters  of  the  field. 
In  the  presidential  election  of  1816,  the  Federalist  candidate, 
Rufus  King,  received  only  34  electoral  votes  against  187  for 
the  Republican  candidate,  James  Monroe,  who  was  reflected 
in  1820  by  a  practically  unanimous  vote.  But  in  the  midst  of 
this  political  millennium,  known  as  the  "era  of  good  feeling," 
the  triumphant  Republican  party  became  responsible  for  two 
events  (1819-20)  —  the  acquisition  of  Florida  and  the  admis- 
sion of  Missouri  as  a  slave  state  —  which  demonstrated  that 
its  Northern  and  Southern  wings  differed  from  each  other  with 
a  bitterness  and  intensity  that  might  have  divided  two  hostile 
camps.  The  so-called  era  of  good  feeling  ended  with  the  elec- 
tion of  John  Quincy  Adams  to  the  Presidency  in  1824;  a  con- 
test in  which  there  were  no  recognized  parties,  political  issues 
being  so  confused  that  the  battle  turned  chiefly  upon  the 
personal  merits  of  the  candidates,  all  of  whom  claimed  to  be 


Republicans,  or  Democrats,  who 
began  to  exist  as  a  party  about  1791. 
The  questions  at  issue  between  the 
two  parties  in  1791  were  entirely 
different  from  the  single  question 
which  divided  the  Federalists  and 
Anti-Federalists  in  1787.  Shall  the 
Constitution  be  adopted? —  that 
was  the  one  question  at  issue  in 


1787."    Gordy's  Political  Parties  in 
the  United  States,  i,  92,  93. 

1  The  questions  that  divided  the 
Federalists  and  Republicans  during 
the  administrations  of  Washington 
and  Adams  related  to  foreign  affairs, 
finance,  and  the  proper  construction 
of  the  Constitution. 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  283 

Republicans.  In  the  presidential  canvass  of  1828  the  two  sec- 
tions of  the  great  Republican  party  assumed  the  character  of 
opposing  forces,  the  supporters  of  Jackson  assuming  the  name 
of  Democrats,  while  his  opponents,  who  favored  the  reelection  Democrats 
of  Adams,  were  known  first  as  National  Republicans,  and 
finally  as  Whigs.  Henceforth  until  1854,  Whig  and  Democrat 
were  the  names  of  the  two  great  political  parties  of  the  United 
States.  The  former,  representing  many  of  the  views  of  the 
Federalists,  —  such  as  the  expenditure  of  public  money  on 
internal  improvements,  a  tariff  for  the  protection  of  manu- 
factures, a  larger  army  and  navy,  —  found  its  main  though 
not  its  sole  support  in  the  commercial  and  manufacturing 
centres  of  the  country,  that  is  in  the  Middle  States  and  New 
England.  The  latter,  representing  the  theories  and  traditions 
of  the  Jeffersonian  Republicans,  —  such  as  the  restrictive 
construction  of  the  Constitution,  an  extreme  view  of  states' 
rights,  and  an  inclination  in  the  direction  of  free  trade,  — 
found  its  main  support  among  the  farming  classes,  notably  in 
the  South.  Toward  the  close  of  Jackson's  second  administra- 
tion, while  Whigs  and  Democrats  were  sharply  opposing  each 
other,  Arkansas,  which  had  been  organized  as  a  territory  in  Arkansas 
1819,  without  any  restriction  on  slavery,  was,  on  June  15, 1836,  a^i"!<?  J? 

r     i       -» /r.  .    ZoSo*  Michigan 

admitted  as  a  slave  state,  under  the  terms  of  the  Missouri  in  I83y. 
Compromise.  When  a  disposition  was  manifested  on  the  part 
of  the  North  to  revolt,  even  John  Quincy  Adams  insisted  that 
the  admission  of  Arkansas  as  a  slave  state  was  "so  nominated 
in  the  bond/'  and  must  not  be  opposed.  The  Northwest  Terri- 
tory was  then  called  upon  for  another  free  state,  and  the 
result  was  the  admission  of  Michigan  on  January  26,  1837. 

With  the  admission  in  1845  of  Florida  and  Texas,  the  terri-  Florida  and 
torial   limits  of  slavery  received   their  last  extensions.    By 
the  treaty  of  1763,  Spain  ceded  Florida  to  Great  Britain  in  admitted, 
return  for  Cuba,  and  under  the  English  the  province  increased  I84S> 
in  prosperity  and  loyalty.    When  the  news  of  the  events  of 
July  4,    1776,   reached   St.  Augustine,   John   Hancock  and 
Samuel  Adams  were  burned  in  effigy  by  a  cheering  crowd  of 
loyalists.1    In  1781  Galvez  captured  Pensacola,2  and  in  1783, 

1  Fuller,  The  Purchase  of  Florida,      257;    Campbell,    Colonial    Florida, 
16-17.  135.  140;  and  Washington's  Works, 

8  See  Hamilton,  Colonial  Mobile,      176. 


284 


THE  AMERICAN  CONSTITUTION 


[CH. 


taken  of  West 
Florida,  1810. 


East  Florida 
and  treaty  of 
1819. 


Florida 
admitted 
in  1845. 


Texas  ceded 
by  France  to 
Spain,  1763. 


Florida  was  ceded  back  to  Spain  by  a  treaty  declaring  that 
"his  Britannic  Majesty  ceded  and  guaranteed  to  his  Catholic 
Majesty  Eastern  and  Western  Florida."  1  That  treaty  left 
behind  it  a  complicated  controversy  as  to  boundary  with 
Louisiana,  which  resulted  in  an  order  from  the  President  to 
Governor  Claiborne  of  the  Territory  of  Orleans  to  take  pos- 
session of  West  Florida,  which  he  did,  in  1810,  with  the  excep- 
tion of  Mobile,  possession  of  which  was  not  taken  until  1813. 
At  the  same  time  the  South  had  its  eyes  on  East  Florida,  of 
which  the  President  was  authorized  to  take  "temporary 
possession"  by  acts  of  January  15,  and  March  3,  1811,  passed 
secretly.  The  necessity  for  such  a  course  increased  as  that 
lawless  region  was  filled  up  with  filibusterers,  hostile  refugee 
Creeks,  and  many  negroes  of  whose  services  free  use  was 
made  during  the  War  of  1812  when  English  and  Spaniards 
made  it  a  base  of  raids  upon  our  territory.  In  July,  1816,  a 
"negro  fort"  was  blown  up  by  an  American  force  sent  into 
Florida  for  that  purpose.  After  Jackson  had  raided  East 
Florida  in  1818,  during  the  Seminole  War,  a  treaty  of  cession 
from  Spain  to  the  United  States  was  signed  in  February,  1819, 
which  was  ratified  in  1821.  In  1822  an  Act  of  Congress  was 
passed  as  in  the  case  of  Missouri,  which,  while  not  referring  in 
express  terms  to  the  Ordinance  of  1787,  in  effect  endowed  the 
inhabitants  of  that  territory  with  the  rights  granted  by  that 
Ordinance.  After  the  end  of  the  Seminole  War  in  1842,  and 
the  removal  of  the  remnants  of  the  Indians  across  the 
Mississippi,  Florida  was  admitted  as  a  slave  state  in  March, 
1845.  As  in  the  cases  of  Louisiana  and  Missouri,  the  custom 
of  slavery,  tacitly  recognized  by  congressional  legislation,  had 
been  in  existence  there  long  prior  to  annexation. 

Despite  the  persistent  claims  of  Spain,  France  took  posses- 
sion of  Texas  in  1685,  nor  did  she  ever  relinquish  it  until  1763, 
when  the  whole  of  Louisiana  west  of  the  Mississippi  was  ceded 
to  Spain.  Ever  since  the  purchase  of  Florida  from  Spain  in 
1819,  the  southwestern  boundary  of  the  United  States  had 
been  recognized  as  the  Sabine  River,  west  of  which  extended 

1  "This    title    extinguished    all  proclamation  of  1763,  Spain  main- 
French  claims,  for  by  the  treaty  of  tained,  after  1783,  the  divisions  of 
1763  France  had  ceded  all  east  of  East  and  West  Florida."    Fuller, 
the  Mississippi  to  England.    Fol-  The  Purchase  of  Florida,  141. 
lowing  the  language  of  the  English 


IX.]       AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  285 

the  then  foreign  land  of  Texas.  After  the  successful  revolt 
of  Mexico,  by  the  treaty  of  Cordova,  February  24,  1821, 
"Texas  and  Coahuila"  became  one  of  the  states  of  the  Mex-  "Texas  and 
ican  Republic.  While  slavery  was  not  recognized  in  the  con-  ^°*e  c 
stitution  of  that  state,  nor  in  the  provisional  Texas  constitu- 
tions of  1833  and  1835,  American  settlers  had  brought  their 
slaves  with  them  and  fairly  introduced  the  custom  of  slavery, 
which  was  formally  recognized  in  the  constitution  of  1836, 
declaring  all  persons  of  color  slaves  for  life,  if  they  had  been 
in  that  condition  before  their  emigration  to  Texas,  and  were 
then  held  in  bondage.  On  March  2,  Texas  asserted  the  right 
of  secession  by  declaring  its  independence  of  Mexico;  and  in 
1837  its  independence,  though  never  acknowledged  as  such 
by  Mexico,  was  recognized  by  the  United  States,  England, 
France,  and  Belgium.  When  the  question  of  the  annexation 
of  Texas  was  hotly  discussed  in  the  presidential  campaign  of 

1844,  Van  Buren,  who  opposed  it,  was  set  aside  by  the  Demo- 
cratic party  for  James  K.  Polk,  who  favored  it.    In  January, 

1845,  after  the  election  of  Polk,  Congress  consented  that  Texas 

might  be  erected  into  a  new  state,  subject  to  three  conditions,  Texas  a  new 
the  last  of  which  was  that  "new  states  of  convenient  size,  state  subject 
not  exceeding  four  in  number,  in  addition  to  the  State  of  ditions. 
Texas,  and  having  sufficient  population,  may  hereafter,  by  the 
consent  of  said  state,  be  formed  out  of  the  territory  thereof, 
which  shall  be  entitled  to  admission  under  the  provisions  of 
the  Federal  Constitution;  and  such  states  as  may  be  formed 
out  of  that  portion  of  the  territory  lying  south  of  thirty-six 
degrees  thirty  minutes  north  latitude,  commonly  known  as 
the  Missouri  Compromise  line,  shall  be  admitted  into  the 
Union  with  or  without  slavery,  as  the  people  of  each  state  ask- 
ing admission  may  desire.   And  in  such  state  or  states  as  shall 
be  formed  out  of  said  territory  north  of  said  Missouri  Com- 
promise line,  slavery  or  involuntary  servitude   (except  for 
crime)  shall  be  prohibited."   The  power  to  annex  by  treaty 
was  exercised  in  1803,  despite  the  doubts  as  to  the  legality  of 
that  method  of  proceeding.    Now  annexation  even  without  a  Annexation 
treaty  was  carried  out  as  in  1803  by  the  votes  of  the  party  of  without 
strict  construction.   In  December  the  annexation  of  Texas  was 
completed  without  the  formality  of  a  treaty.  With  the  election 
of  Polk  the  North  and  South  were  finally  arrayed  in  opposition 


286 


THE  AMERICAN  CONSTITUTION 


[CH. 


Population  of 
the  Southwest 
prior  to  1830. 


Iowa  admitted 
in  1846; 


Wisconsin 
in  1848. 

Mexican  War 
a  victory  for 
slavery. 


Its  soil  had 
been  made 
free. 


to  each  other,  —  the  slavery  question  became  the  "burning 
question  from  that  time  down  to  the  appeal  to  arms." 

Prior  to  1830,  the  Southwest  had  filled  up  more  rapidly  than 
the  Northwest;  at  that  date  the  centre  of  population  was 
farther  south  than  it  has  ever  been  at  any  other  time.  Com- 
paratively little  of  the  soil  of  Michigan,  Iowa,  Minnesota,  and 
Wisconsin  had  as  yet  been  occupied,  although  settlements  were 
being  made  on  most  of  the  larger  streams.  The  Territory  of 
Iowa  had  in  1836  only  10,500  inhabitants,  ini84O,  only  43,000, 
at  which  time  Wisconsin  had  only  31,000.  At  that  date  nearly 
all  of  the  lands  of  the  United  States  east  of  the  Mississippi 
had  been  taken  up  by  settlers.  So  far  the  mass  of  immigration 
was  as  yet  native,  as  the  great  rush  from  Europe  did  not 
begin  until  about  I847.1  Out  of  such  conditions  arose  the 
next  two  states  admitted  as  free  states.  In  1834,  all  that  part 
of  the  United  States  lying  west  of  the  Mississippi  River  and 
north  of  Missouri,  including  the  present  area  of  Iowa,  was 
placed  under  the  jurisdiction  of  the  Territory  of  Michigan,  and 
two  years  later  the  Territory  of  Wisconsin,  including  what  is 
now  Iowa,  was  created.  In  1838,  Iowa  itself,  originally  a  part 
of  the  Louisiana  Purchase,  was  made  a  territory,  and  on  De- 
cember 28,  1846,  it  was  admitted  to  the  Union  as  a  state.  By 
the  Ordinance  of  1787,  Wisconsin  had  been  a  part  of  the  North- 
west Territory;  in  1800  it  was  included  in  Indiana  Territory, 
whence  in  1809  it  passed  to  Illinois  Territory,  and  finally  to 
Michigan  Territory.  Not  until  1836  was  Wisconsin  Territory 
created.  After  the  constitution  framed  in  1846  had  been 
rejected  by  the  people,  a  second  was  ratified  in  1848,  and  Wis- 
consin became  a  state  on  May  29  of  that  year. 

The  sequel  of  the  annexation  of  Texas  was  the  Mexican  War, 
resulting  in  a  vast  acquisition  of  territory,  which  came  as  an 
additional  victory  for  slavery,  because,  as  nearly  all  of  it  lay 
south  of  36°  30',  it  could  become,  under  the  terms  of  the  Mis- 
souri Compromise,  slave  soil.  A  drawback  existed,  however, 
in  the  fact  that  in  the  new  territory  thus  acquired,  slavery  had 
been  forbidden  by  Mexican  law.  Mexican  soil  was  declared 
to  be  free  under  the  decree  of  Guerrero,  the  Mexican  Dictator, 
in  1829,  afterwards  ratified  by  the  Mexican  Congress.  That 
fact  predisposed  many  who  were  not  in  general  opposed  to 
1  Cf.  Andrews,  Hist,  of  the  United  States,  i,  37°~372 • 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  287 

slavery  against  extending  the  institution  thither.  As  an  ex- 
pression of  that  feeling,  David  Wilmot,  a  Pennsylvania  Demo- 
crat, following  in  the  footsteps  of  Tallmadge,  introduced  in  the 
House  in  1846  his  famous  Proviso,  applying  to  any  newly  Wilmot  Pro- 
acquired  territory  the  provision  of  the  Ordinance  of  1787, "  that  V1SO>  l846' 
neither  slavery  nor  involuntary  servitude  shall  ever  exist  in 
any  part  of  said  territory,  except  for  crime,  whereof  the  party 
shall  be  first  duly  convicted."  While  the  Wilmot  Proviso 
failed  to  pass,  it  called  into  existence  the  Free-Soil  party,  Free-Soil 
founded  by  the  union  of  anti-slavery  Democrats  and  Whigs 
with  the  Abolitionists.  Through  the  power  of  the  Free-Soilers 
to  draw  the  Democratic  vote  from  New  York,  the  Presidency 
passed  to  Taylor,  who,  despite  the  fact  that  he  was  a  Louisiana 
slaveholder,  was  unflinching  in  his  devotion  to  the  Union. 
Eager  as  Taylor  was  to  bring  California  in  before  the  question 
of  slavery  in  that  territory  could  be  discussed  in  Congress, 
he  urged  the  people  to  call  a  convention  and  organize  a  state. 
That  they  did  in  1849;  and  as  the  bulk  of  them  were  from  the 
North,  they  framed  a  constitution  prohibiting  slavery,  and 
applied  for  admission.  In  the  crisis  this  brought  about  all  eyes  California  and 
turned  to  the  great  Compromiser  who  had  taken  the  country 
safely  through  the  Missouri  crisis  of  thirty  years  before. 
Clay  now  proposed  that  California  should  be  admitted  as  a 
free  state;  that  any  new  states  properly  formed  from  Texas 
should  also  be  admitted;  that  the  territories  of  Utah  and  New 
Mexico  should  be  organized  without  the  Wilmot  Proviso; 
that  a  more  rigid  Fugitive-Slave  Law  should  be  enacted ;  and 
that  the  slave  trade  should  be  abolished  in  the  District  of 
Columbia.  Finally,  on  September  7,  1850,  a  bill  passed  Con- 
gress admitting  California  into  the  Union  as  a  state,  without 
slavery,  but  leaving  Utah  and  New  Mexico  open  to  its  intro- 
duction. 

The    Democratic   Convention  that    met   in  Baltimore  in  Triumph  of 
1852  pledged  that  party  to  the  observance  of  the  Compromise  Pierce  a&d 
of  1850;  the  Whig  Convention  that  met  in  the  same  place  in  Whigs. 
June  indorsed  the  Compromise  and  the  Fugitive-Slave  Law; 
the  Free-Soil  Democratic  Convention  that  met  at  Pittsburg 
in  August  declared  slavery  to  be  a  sin  against  God  and  a  crime 
against  man,  and  denounced  the  Compromise  of  1850  and  the 
two  parties  that  supported  it.   After  the  triumph  of  Pierce  and 


288 


THE  AMERICAN  CONSTITUTION 


[Cn. 


South  at  a 
loss  for  slave 
territory. 


Failure  to 
buy  Cuba. 


Kansas- 
Nebraska 
Bill,  1854. 


Douglas 
and  squatter 
sovereignty. 


the  ruin  of  the  Whigs,  the  South  was  at  a  loss  what  to  do  for 
new  slave  territory,  now  that  the  North  had  a  preponderance 
through  the  admission  of  California  and  the  rapid  growth  of 
the  Northwestern  States,  in  which  New  England  ideas  had 
become  predominant.  As  slavery  had  reached  the  limits  of 
its  state  extension  in  1845  with  the  admission  of  Florida  and 
Texas,  to  the  territories  alone  all  future  attacks  had  to  be 
directed.  Passing  over  the  attempt  to  buy  Cuba,  which  failed 
at  Ostend  in  1854,  we  must  look  next  at  the  scheme  to  acquire 
more  territory  into  which  to  extend  slavery  in  the  region  lying 
west  of  Missouri  and  Iowa,  to  the  north  of  36°  30',  and  which, 
under  the  Missouri  Compromise,  was  ever  to  be  free  soil. 
The  project  that  contemplated  the  repeal  of  that  famous 
compact  proved  successful,  so  far  as  legislation  could  go, 
when  a  bill,  introduced  in  the  Senate  in  December,  1853,  to 
organize  the  Territory  of  Nebraska  received  the  support  of  a 
sufficient  number  of  Free-Soil  Democrats  to  make  it  a  success. 
A  week  later,  a  new  bill  was  brought  in,  known  as  the  Kansas- 
Nebraska  Bill,  approved  May  30,  1854,  which  divided  the 
region  covered  by  the  first  into  two  territories,  one  directly 
west  of  Missouri,  to  be  called  Kansas,  and  the  other,  north 
of  this,  to  be  called  Nebraska.  Thus  two  states  were  to  be 
opened  to  slavery  instead  of  one,  for  the  new  bill  distinctly 
declared  that  the  Missouri  Compromise  had  been  swept  away 
by  the  later  Compromise  of  1850.  The  passage  of  the  bill  in 
question  was  coupled  with  the  contention  that,  as  the  popula- 
tion of  the  territories  had  the  natural  right  to  decide  for  them- 
selves the  character  of  their  own  local  institutions,  Congress 
had  no  authority  to  vote  slavery  in  or  out  for  them.  That 
idea,  known  as  Squatter  Sovereignty,  was  the  invention  of 
Stephen  A.  Douglas,  a  Northern  Democrat,  who  proposed  thus 
to  lay  bare  the  finest  region  of  country  open  for  settlement 
as  a  battle-ground  between  the  slave-labor  and  the  free-labor 
systems.  When  the  Kansas-Nebraska  question  passed  from 
Congress  to  Illinois  in  the  fall  of  1854,  Douglas  was  called  upon 
to  defend  his  claim  that  the  slavery  question  was  forever 
settled  by  his  invention  of  "popular  sovereignty,"  which,  he 
said,  took  it  out  of  Congress,  and  gave  it  to  the  people  of  the 
territories  to  decide  as  they  pleased.  The  anti-Nebraska  party 
in  Illinois,  when  forced  to  find  a  champion  who  could  meet 


IX.]       AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  289 

"the  little  giant"  in  debate,  agreed  upon  Abraham  Lincoln,  Abraham 
who  had  served  a  single  term  in  Congress  (1847-49).  The  time  Lmcoln- 
had  now  arrived  when  Douglas  was  to  be  told  that  slavery 
was  not  a  local  but  a  national  question,  that  any  particular 
institution  in  any  locality  that  affects  the  welfare  of  all  is  the 
common  concern  of  all.   Lincoln's  expressions  on  that  subject 
were  the  first  articulate  outcry  of  the  new  national  spirit,  just 
after  the  nation  awoke  to  a  full  sense  of  its  oneness.    In  one 
of  his  early  meetings  with  Douglas,  Lincoln  said:  "Let  us  re- 
adopt  the  Declaration  of  Independence,  and  the  practices  and 
policy  which  harmonize  with  it.    Let  North  and  South  —  let 
all  Americans  —  let  all  lovers  of  liberty  everywhere  —  join  in 
the  great  and  good  work.   If  we  do  this  we  shall  not  only  have 
saved  the  Union,  but  we  shall  have  so  saved  it  as  to  make  and 
keep  it  forever  worthy  of  the  saving.  We  shall  have  so  saved  it 
that  the  succeeding  millions  of  free,  happy  people,  the  world 
over,  will  rise  up  and  call  us  blessed  to  the  latest  generations." 
Such  was  the  prelude  to  the  more  famous  Lincoln-Douglas  Lincoln- 
debates  of  I858.1  Then  it  was,  after  an  interval  of  eight  years,  ^ateT 
that  the  admission  of  another  free  state  followed  that  of  Cali-  of  1858. 
fornia.    On  March  20,  1804,  Upper  Louisiana  was  organized, 
consisting  of  Arkansas,  Missouri,  Iowa,  and  a  large  part  of 
Minnesota.  Not,  however,  until  March  3,  1849,  did  a  bill  pass 
organizing  the  last-named  as  a  territory.   In  1851  the  Indians 
gave  up  their  rights  by  treaty,  and  in  1857  a  constitution  was 
adopted.    On  May  n,  1858,  Minnesota  was  admitted  as  a  Minnesota 
state  into  the  Union.    No  part  of  the  territory  of  the  United  Admitted  in 
States  has  a  more  difficult  history  than  that  embraced  within 
the  limits  of  Oregon.   As  the  author  has  attempted,  in  another 
work,  to  condense  that  history  into  a  narrow  compass,  he  will 
content  himself  here  with  a  simple  reference  to  that  attempt.2 
The  Oregon  country  was  really  secured  in  1846  by  the  treaty 
with  Great  Britain,  which  fixed  the  boundary  between  British 
America  and  the  United  States  west  of  the  Rocky  Mountains 
as  at  present  defined.    In  1848  the  territorial  government  was 
established,  and  on  February  14,  1859,  Oregon  was  admitted  Oregon  ad- 
as  a  state  into  the  Union.  mitted  in  1859. 

1  See  the  author's  article  in  The          *  Taylor,     International     Public 
North  American  Review  for  Febru-      Law,  130,  134,  136,  146. 
ary,    1909,  entitled   "The  Lincoln- 
Douglas  Debates." 


290 


THE  AMERICAN  CONSTITUTION 


[Ci 


Summary. 


Eleven  free 
and  nine  slave 
states  in  1859. 


The  Dred  Scott 
case,  1857. 


Was  the  act 
embodied  in 
the  Missouri 
Compromise 
constitutional  ? 


A  point  has  now  been  reached  at  which  it  is  possible  to  sum 
up  the  results  of  the  seventy  years'  struggle  between  the  free 
and  slave  states  for  the  political  control  of  such  sovereign 
powers  as  were  vested  in  the  national  legislature  by  the  Con- 
stitution adopted  in  1789.  Prior  to  the  admission  of  Missouri 
in  1821,  the  process  of  preserving  the  balance  of  power  by  the 
alternative  admission  of  a  free  and  slave  state  had  proceeded 
without  interruption.  The  result  up  to  that  point  was  five 
free  and  five  slave  states.  With  the  admission  of  Oregon  in 
1859,  the  political  balance-sheet  indicated  a  decided  advantage 
in  favor  of  one  of  the  competitors.  In  the  column  of  free 
states,  admitted  since  1789,  there  stood  Vermont  (1791),  Ohio 
(1803),  Indiana  (1816),  Illinois  (1818),  Maine  (1820),  Michi- 
gan (1837),  Iowa  (1846),  Wisconsin  (1848),  California  (1850), 
Minnesota  (1858),  Oregon  (1859), —  eleven.  In  the  column  of 
slave  states,  admitted  during  the  same  period,  there  stood 
Kentucky  (1792),  Tennessee  (1796),  Louisiana  (1812),  Missis- 
sippi (1817),  Alabama  (1819),  Missouri  (1821),  Arkansas  (1836), 
Florida  (1845),  Texas  (1845), — nine.  Thus  it  appears  that  the 
South  was  vanquished  in  the  seventy  years'  battle  for  political 
control  through  the  organization  of  new  states  on  slave  soil. 

Just  before  the  end  came,  the  conflict  was  shifted  from  the 
political  to  the  judicial  arena.  When  in  1846-50  an  attempt 
was  made  to  extend  the  Missouri  Compromise,  an  act  of  con- 
gressional legislation,  to  all  the  territory  acquired  from  Mexico, 
it  was  defeated  by  the  Compromise  of  1850,  under  which  Con- 
gress and  the  territorial  legislatures  were  bound  to  refrain  from 
dealing  with  the  subject  of  slavery  in  the  new  territories  at  all. 
When  in  1854  the  Missouri  Compromise  was  abrogated,  leav- 
ing to  the  people  of  each  territory  the  right  to  decide  the  ques- 
tion of  slavery  as  they  pleased,  began  the  Kansas-Nebraska 
struggle  whose  result,  as  stated  above,  demonstrated  that  slave- 
state  immigration  could  not  compete  with  free-state  immigra- 
tion under  the  rules  which  the  Douglas  "popular  sovereignty  " 
scheme  defined.  It  only  remained  for  the  judicial  power  to 
determine  whether  or  no  Congress  had  constitutional  authority 
to  exclude  slavery  from  the  territories ;  was  the  act  of  congres- 
sional legislation  embodied  in  the  Missouri  Compromise  con- 
stitutional? In  the  case  of  Dred  Scott  v.  Sandford,1  decided 

1  19  How.  393. 


IX.]      AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  291 

March  6,  1857,  the  Supreme  Court  held  that  it  was  not.  The 
vital  facts  of  the  case,  which  began  in  the  Federal  Circuit 
Court  for  Missouri  in  1854,  are  these:  In  1834,  Dr.  Emerson 
took  his  negro  slave,  Dred  Scott,  from  Missouri  first  to  Illinois, 
where  slavery  was  prohibited  by  statute,  then  to  Wisconsin, 
a  part  of  the  Louisiana  Purchase,  where  slavery  was  prohib- 
ited by  the  Missouri  Compromise.     In  1838,  Dr.  Emerson 
returned  with  his  slave  to  Missouri.   Then  it  was  that  Scott, 
or  some  one  for  him,  conceived  the  idea  that  by  touching  the 
free  soils  of  Illinois  and  Wisconsin  during  his  absence  he  had 
been  set  free.    In  other  words,  the  direct  purpose  of  the  case 
was  to  ascertain  whether  or  no  the  doctrine  laid  down  by  Lord  An  attempt 
Mansfield  in  Sommersett's  case  —  wherein  it  was  held  that  doctrine  of6 
a  slave,  taken  to  England  from  one  of  the  American  colonies  Sommersett'a 
where  slavery  was  legal,  was  set  free  by  touching  the  soil  of  case> 
England,  where  slavery  was  not  recognized  by  positive  law  — 
could  be  applied  under  our  Constitution,  whose  compromises 
expressly  recognized  the  existence  of  slavery  as  a  matter  of 
positive  and  supreme  law.  An  eminent  English  jurist  has  thus 
stated  in  a  few  words  the  essence  of  the  Dred  Scott  case: 
"There,  a  person,  having  the  status  of  slave  in  a  state  where 
slavery  was  legal,  was  taken  by  his  master  into  a  free  state  of 
the  Union  in  which  slavery  was  prohibited  by  law;  nothing, 
however,  was  there  effectually  done  to  alter  the  condition  of 
the  slave,  and  it  was  held  that  on  returning  to  a  slave  state 
he  again  became  a  slave. "  l    On  the  theory  that  he  was  a  free 
man  after  his  return  to  Missouri,  Dred  Scott  contended  that 
a  whipping  there  given  him  by  his  master  in  1848  was  an 
assault  and  battery,  for  which  he  brought  suit  in  a  state  court 
at  St.  Louis  and  obtained  judgment.    While  that  case  was 
pending  in  the  State  Supreme  Court,  Dr.  Emerson  sold  his 
slave  to  Sandford  of  the  city  of  New  York.  Upon  the  theory 
that  Scott  and  Sandford  thus  became  "citizens  of  different 
states,"  the  former  brought  suit  against  the  latter  for  assault 
and  battery  in  the  Federal  Circuit  Court  for  Missouri,  where 
Sandford  pleaded  that  the  plaintiff  was  not  as  alleged  a  citi-  Plea  to  the 
zen  of  Missouri  but  "a  negro  of  African  descent;  his  ancestors  i^^g^t 
were  of  pure  African  blood,  and  were  brought  into  this  country  a  citizen? 
and  sold  as  negro  slaves."    Scott  in  demurring  to  that  plea 
1  Broom's  Constitutional  Law  (Denman,  2d  ed.)f  103. 


292 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Constitu- 
tionality of 
Compromise 
essence  of 
issue. 


Fugitive- 
slave  clause. 


Consistency 
of  Garrison. 


claimed  that  he  was  a  citizen  on  defendant's  own  showing,  and 
his  demurrer  was  sustained.  Sandford  then  pleaded  to  the 
merits  that  plaintiff  was  his  negro  slave  and  that  as  such  he 
had  "gently  laid  hands  on  him  "as  he  was  authorized  to  do 
by  law. 

After  the  court  had  declared  the  law  to  be  with  the  de- 
fendant, plaintiff  presented  exceptions  upon  which  the  case 
passed  to  the  Supreme  Court,  where  the  primary  question 
was  one  of  jurisdiction.  Was  Scott  a  "citizen  of  Missouri" 
within  the  meaning  of  the  Constitution?  If  he  was  not,  the 
Federal  Circuit  Court  had  no  jurisdiction  of  his  case;  and  he 
certainly  was  not  a  citizen  but  a  slave,  unless  his  residence 
in  Illinois,  where  slavery  was  prohibited  by  statute,  and  in 
Wisconsin,  where  slavery  was  prohibited  by  the  Missouri  Corn- 
premise,  had  set  him  free.  The  constitutionality  of  the  Com- 
promise was  thus  the  essence  of  the  issue,  because  upon  its 
validity  depended  the  fact  whether  Scott's  status  as  a  slave  was 
affected  by  his  presence  on  the  soil  of  Wisconsin.  If  Mans- 
field had  been  governed  by  an  Act  of  Parliament  directing  him 
to  return  Sommersett  to  his  master  as  a  fugitive  slave,  so  that 
his  status  as  such,  established  by  the  law  of  Virginia,  where  he 
had  been  purchased,  might  be  preserved  at  London,  he  would 
have  said  at  once  slavery  is  here  upheld  by  positive  law.  So 
the  Supreme  Court  was  compelled  to  hold,  because  by  the 
positive  and  supreme  law  embodied  in  the  "compromises  of 
the  Constitution  "  the  status  of  a  slave  fixed  by  the  law  of  one 
state  followed  him  to  such  an  extent  into  every  other  state  that 
his  return  as  such  was  guaranteed  by  positive  law.  Article  in, 
Sec.  2,  Clause  3,  expressly  declared  that  "no  person  held  to 
service  or  labor  in  one  state,  under  the  laws  thereof,  escaping 
into  another  state,  shall,  in  consequence  of  any  law  or  regu- 
lation therein,  be  discharged  from  such  service  or  labor,  but 
shall  be  delivered  up  on  claim  of  the  party  to  whom  service  or 
labor  may  be  due."  In  a  word  Scott  could  not  win  unless  the 
doctrine  of  Sommersett's  case  could  be  applied  to  his,  and  such 
an  application  was  expressly  forbidden  by  the  clause  in  ques- 
tion. The  fault  was  in  the  provisions  of  positive  constitutional 
law  which  the  Court  could  not  alter.  Therefore  William  Lloyd 
Garrison,  with  perfect  consistency,  directed  his  attacks  against 
the  Constitution  itself,  or  against  those  parts  of  it  in  which  the 


IX.]       AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  293 

compromises  were  embodied.1  The  North  revolted  against  the 
judgment  of  the  Court,  and  refused  to  acquiesce  in  it,  not  be- 
cause it  was  not  a  correct  announcement  of  the  positive  law, 
but  because  the  great  moral  revolt  that  had  its  roots  in 
Sommersett's  case  had  repudiated  the  positive  law  and  made 
it  odious.  No  serene  and  impartial  student  of  the  Constitution 
should  ever  for  a  moment  doubt  that  the  conclusions  reached 
by  the  Supreme  Court  in  the  Dred  Scott  case  were  in  perfect 
accord  with  the  positive  law  as  defined  in  the  compromises  of 
the  Constitution.  On  the  other  hand,  no  such  student  of  the 
history  of  humanity  will  ever  for  a  moment  doubt  that  such 
conclusions  were  in  sharp  conflict  with  what  Seward  called 
"the  higher  law  "  —  that  is,  the  law  on  the  subject  of  slavery  as 
it  had  been  fixed  at  that  time  by  the  consensus  of  the  civilized 
nations.  When  at  an  earlier  day  the  Supreme  Court  aroused 
the  country  by  holding,  in  Chisholm  v.  Georgia,  that  a  state 
was  suable  by  a  private  citizen,  the  matter  was  remedied  by 
the  Eleventh  Amendment.  So  in  due  time  the  conclusion 
reached  in  the  case  of  Dred  Scott  was  reversed  by  the  Thir-  Thirteenth 
teenth  Amendment,  which  provides  that:  "Neither  slavery 
nor  involuntary  servitude,  except  as  a  punishment  for  crime 
whereof  the  party  shall  have  been  duly  convicted,  shall  exist 
within  the  United  States,  or  any  place  subject  to  their  juris- 
diction." The  moment  it  was  ascertained  in  Dred  Scott's  case 
that  his  status  as  a  slave  had  never  been  changed  by  the  laws 
of  the  free  states  into  which  he  was  taken,  the  contention  that 
he  was  a  citizen,  in  any  sense,  became  hopelessly  untenable.2 

By  that  time  the  disruptive  force  of  the  slavery  question  Disruptive 
had  rent  in  twain  everything  that  could  be  dismembered.   Ex-  *°^  of 
cepting  the  Catholics  and  Episcopalians,  it  had  split  the  great  question. 

1  Because  the   Constitution  put  critics  of  the  judgment  in  question 
the  institution  of  slavery  under  the  frankly  admits  that "  the  action  had 
protection  of    the  supreme  law  of  been  brought  by  Scott  in  the  Cir- 
the  land,  Garrison  denounced  it  as  cuit  Court  of  the  United  States  for 
a  league  with  the  Devil  and  a  cove-  the  District  of  Missouri,  to  establish 
nant  with  Hell.  the  freedom  of  himself,  his  wife,  and 

2  The  fact  that  it  required  a  con-  their  two  children."   Carson,  History 
stitutional  amendment    to  abolish  of  the  Supreme  Court,  367.   Will  any 
slavery  puts  it  beyond  all  question  jurist  now  contend  that  the  federal 
that    the    Supreme    Court    of    the  courts,  under  the  Constitution  as  it 
United  States  had  no  authority  to  then  stood,  had  the  power  to  grant 
abolish  it,  in  the  absence  of  such  an  that  prayer  ? 

amendment.    One  of  the  harshest 


294 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Lincoln  leader 
of  Republican 
party. 


His  contention 
corner-stone  of 
new  national 
life. 


Discomfiture 
of  Douglas. 


religious  denominations  into  Northern  and  Southern  churches. 
It  had  split  into  two  sections  the  Whig  party,  which  went  to 
pieces  after  the  election  of  1852.  For  two  years  thereafter 
there  was  really  but  one  great  party,  the  Democratic  party, 
which  was  called  upon  in  1854  to  pass  the  Kansas-Nebraska 
Act,  made  law  by  the  votes  of  Northern  and  Southern  Demo- 
crats, and  Southern  Whigs.  At  the  first  election  for  members 
of  Congress  after  the  passage  of  that  Act,  every  one  in  the 
North  hostile  to  the  extension  of  slavery  enlisted  in  the  ranks 
of  those  opposed  to  the  Kansas-Nebraska  Bill,  —  an  organiz- 
ation called  at  first  "Anti-Nebraska  Men,"  and  before  the  new 
Congress  met,  Republicans.  From  the  time  the  Kansas- 
Nebraska  question  passed  from  Congress  to  Illinois  in  the  fall 
of  1854,  the  leader  of  the  new  party  was  Abraham  Lincoln, 
whose  quaint  originality,  aptness  of  phrase,  cleanness  of  defin- 
ition, and  poetical  fervor  often  culminated  in  flights  of  genuine 
eloquence.  Of  his  brilliant  antagonist,  Douglas,  it  has  been 
said,  that  "he  was  tireless,  ubiquitous,  unseizable.  It  would 
have  been  as  easy  to  hold  a  globule  of  mercury  under  the  fin- 
ger's tip  as  to  fasten  him  to  a  point  he  desired  to  evade."  But 
against  all  his  arts  Lincoln  made  good  the  simple  contention 
that  all  local  questions  that  affect  all  are  the  common  concern 
of  all,  which  contention  has  become  the  corner-stone  of  our 
new  national  life.  The  result  of  the  first  application  made  of 
that  principle  by  the  reunited  nation  was  the  destruction, 
with  the  hearty  concurrence  of  the  South,  of  a  peculiar  social 
institution  within  the  Territory  of  Utah  which  conflicted  with 
the  general  principles  of  our  civilization.1  In  "the  battle  of 
giants,"  as  the  Lincoln-Douglas  debates  of  1858  are  usually 
called,  two  immortal  tribunitian  orators  spoke  really  the  last 
words  in  the  bitter  and  prolonged  contestation  over  slavery 
that  culminated  in  the  Civil  War.  The  inconsistent  attitudes 
Douglas  was  forced  to  assume  by  reason  of  the  decision  in  the 
Dred  Scott  case  exposed  him  to  attacks  from  friend  and  foe. 
After  its  rendition  Lincoln  thus  taunted  him:  "The  first  thing 
I  ask  attention  to  is  the  fact  that  Judge  Douglas  constantly 
said,  before  the  decision,  that  whether  they  could  or  not  was 
a  question  for  the  Supreme  Court.  But,  after  the  Court  has 


1  See  Church  of  Jesus  Christ  of 
Latter-Day  Saints  v.  U.  S.,  136  U.  S. 


i ;  U.  S.  v.  Church  of  Jesus  Christ, 
etc.,  150  U.  S.  145. 


IX.]       AFRICAN  SLAVERY  AND  ITS  CONSEQUENCES  295 

made  the  decision,  he  virtually  says  it  is  not  a  question  for  the 
Supreme  Court,  but  for  the  people."  Not  long  after  the  meet- 
ing of  the  Democratic  National  Convention  at  Charleston  in 
April,  1860,  Judah  P.  Benjamin,  of  Louisiana,  said  in  the 
Senate:  "Sir,  it  has  been  with  reluctance  and  sorrow  that  I 
have  been  obliged  to  pluck  down  my  idol  from  his  place  on 
high,  and  to  refuse  him  any  more  support  or  confidence  as  a 
member  of  his  party.  .  .  .  We  accuse  him  for  this,  to  wit: 
that  having  bargained  with  us  upon  a  point  upon  which  we 
were  at  issue,  that  it  should  be  considered  a  judicial  point; 
that  he  would  abide  the  decision,  that  he  would  act  under  the 
decision,  and  consider  it  a  doctrine  of  the  party;  that  having 
said  that  to  us  here  in  the  Senate,  he  went  home,  and  under 
the  stress  of  a  local  election  his  knees  gave  way,  his  whole  per- 
son trembled.  His  adversary  stood  upon  principle  and  was 
beaten ;  and  lo !  he  is  the  candidate  of  a  mighty  party  for  the 
Presidency  of  the  United  States."  Not  until  a  change  was 
made  in  the  party  majority  in  the  Senate  by  the  withdrawal 
of  the  Southern  Senators  was  Kansas  at  last  admitted  as  a 
state,  January  29,  1861,  under  the  Wyandotte  constitution,  Kansas  ad- 
by  which  slavery  was  prohibited.  No  slave  state  had  been  mitted  in  I86x- 
admitted  since  1845.  During  the  intervening  sixteen  years 
six  free  states  —  Iowa,  Wisconsin,  California,  Minnesota, 
Oregon,  and  Kansas  —  had  marched  consecutively  into  the 
Union. 


CHAPTER  X 


Savigny  —  law 
as  a  part  of 
national  life. 


SIXTY-ONE  YEARS  OF  CONSTITUTIONAL  GROWTH  (1804-65) 

WHEN  in  1814  Savigny,  the  founder  of  the  historical  school 
of  jurisprudence,  published  his  "Beruf  unserer  Zeit"  he  made 
a  revelation  to  the  world  through  his  declaration  that  law  is 
part  and  parcel  of  national  life.  "  I  regard  the  law  of  each 
country,"  he  said,  "as  a  member  of  its  body,  not  as  a  garment 
merely,  which  has  been  made  to  please  the  fancy,  and  can  be 
taken  off  at  pleasure  and  exchanged  for  another."  Instead  of 
regarding  law  as  the  creation  of  the  will  of  individuals,  he 
maintained  it  to  be  the  natural  outcome  of  the  consciousness 
of  the  people,  like  their  social  habits  or  their  language;  the 
people,  he  said,  is  always  the  true  legislator  ("Das  Gesetz  ist 
das  Organ  des  Volksrechts").  He  thus  assimilated  changes  in 
law  to  changes  in  language.1  "As  in  the  life  of  individual  men 
no  moment  of  complete  stillness  is  experienced,  but  a  constant 
organic  development,  such  also  is  the  case  in  the  life  of  nations, 
and  in  every  individual  element  in  which  this  collective  life 
consists.  So  we  find  in  language  a  constant  formation  and  de- 
velopment and  in  the  same  way  in  law."  2  Max  Muller  has 
said  that  a  living  language  is  like  a  mountain  stream  which  is 
ever  changing  and  widening  as  it  moves  on  in  its  course ;  that 
a  dead  language  is  like  such  a  stream  when  the  frost  of  winter 
checks  its  onflow  and  hardens  it  into  ice.  The  moment  a  lan- 
guage ceases  to  change  through  growth  it  is  dead ;  the  moment 
a  constitution  ceases  to  change  through  growth  it  is  dead.  In 
the  light  of  that  truth  Sir  James  Mackintosh  said:  "Constitu- 

1  "  In  no  conceivable  condition  of 
mankind  could  it  [law]  ever  have 
stood  alone.  It  is  peculiarly  the  pro- 
duct of  every  social  force  existing 
at  any  moment  in  the  community; 
it  reacts  back  upon  the  social  forces 
as  being  in  itself  the  most  potent 
force  of  all."  Amos,  A  Systematic 
View  of  the  Science  of  Jurisprudence, 
18. 


2  In  1815  appeared  the  first 
volume  of  Savigny's  Geschichte 
des  romischen  Rechts  im  Mittelalter, 
the  last  volume  of  which  did  not 
appear  until  1831.  System  des 
heutigen  romischen  Rechts  (8  vols. 
1840-49);  Das  Obligationen-recht  (2 
vols.,  1851-53). 


X.]     SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  297 

tions  are  not  made,  they  grow."  Despite  the  fact  that  a  part  "Constitutions 
of  our  Constitution,  the  federal  part,  is  an  artificial  creation, 
despite  the  fact  that  it  is  encased  in  precise  and  dogmatic 
written  formulas,  despite  the  fact  that  change  through  the  pre- 
scribed forms  of  amendment  is  next  to  impossible,  —  the  truth 
remains  that  during  something  more  than  an  hundred  years  it 
has  passed  through  a  wider  expansion  than  any  other  in  his- 
tory. Its  most  notable  single  trait  is  its  elasticity,  its  growing- 
power.  By  solemn  restatements  in  written  instruments  at  English 
long  intervals  of  its  basic  principles,  the  growth  of  the  English 
Constitution  has  been  directed,  not  retarded.  When  Magna  embodied  in 
Carta  (1215),  the  Petition  of  Right  (1628),  the  Acts  of  the  documents. 
Long  Parliament  (1640-41),  the  Habeas  Corpus  Act  (1679), 
the  Bill  of  Rights  (1689),  the  Act  of  Settlement  (1700  and 
1701),  the  Reform  Bills,  beginning  with  that  of  1832,  are 
viewed  as  a  connected  and  progressive  whole,  we  see  how  the 
ancient  and  originally  unwritten  Constitution  of  England  has 
been  developed,  from  age  to  age,  by  the  aid  of  these  dogmatic 
restatements  of  it.  As  by  arboriculture  the  growth  of  trees  may 
be  advanced  and  directed,  so  by  the  processes  of  Political 
Science  the  growth  of  constitutions  may  be  advanced  and 
directed.  Thus  the  English  Constitution  has  passed  through  A  long  process 

a  long  process  of  change  and  of  growth,  it  has  taken  on  many  °*  change  and 

r     .       .     ,  of  growth, 

new  forms,  it  has  borne  great  fruit,  it  has  controlled  the 

destinies  of  a  nation  "which,"  in  the  happy  phrase  of  Taine, 
"while  reforming  in  all  directions,  has  destroyed  nothing; 
which  has  preserved  both  its  trees  and  its  constitution,  which 
has  lopped  off  the  dead  branches  without  leveling  the  trunk; 
which  alone,  in  our  days,  among  all  nations,  is  in  the  enjoy- 
ment not  only  of  the  present,  but  the  past. "  1 
We  began  our  constitutional  life  by  embodying  in  our  state  constitu- 

original  state  constitutions  the  ripe  fruits  of  England's  political  tions  °utcome 

,,  of  evolution, 

growth.   In  that  way  our  first  constitutions  were  the  products 

of  political  evolution.  When  the  time  came  for  confederation 
we  adapted  to  our  wants  a  foreign  and  entirely  artificial 
federal  fabric  which  was  outgrown  in  about  twelve  years. 
Through  a  great  invention  then  made,  we  entered  into  an 
entirely  new  and  unique  union,  partly  federal  and  partly 
national,  whose  defects  had  to  be  remedied  by  twelve  amend- 
1  Hist,  of  Eng.  Literature,  ii,  517. 


298 


THE  AMERICAN  CONSTITUTION 


[Cn. 


How  we  have 
advanced  from 
one  stage  of 
growth  to  an- 
other 


Omnipotent 
Parliament 
and  Supreme 
Court. 


ments  adopted  within  the  period  of  fifteen  years.  Still  a 
radical  defect  remained.  The  new  system,  operating  directly 
upon  the  citizen,  had  no  citizens  in  its  own  right.  As  we  grew 
into  a  nation  it  became  necessary  to  remove  that  defect 
through  the  creation  of  a  genuine  national  citizenship,  a  result 
obtained  by  the  adoption  in  1868  of  Section  i  of  the  Fourteenth 
Amendment.  Through  the  silent  revolution  thus  wrought  the 
centre  of  gravity  of  the  composite  structure  was  shifted  from 
the  states  to  the  nation.  And  so  by  the  adoption,  from  time 
to  time,  of  new  principles  defined  in  written  instruments,  we 
are  advancing,  as  England  has  advanced,  from  one  stage  of 
growth  to  another.  Nothing  could  be  more  superficial  than 
the  attempt  to  differentiate  the  English  and  American  consti- 
tutions by  the  entirely  false  and  misleading  statement  that 
the  one  is  unwritten,  the  other  written.  The  fact  is  that  the 
series  of  written  documents  in  which  each  is  now  defined  are 
equally  precise,  dogmatic,  and  voluminous.  In  the  last  analysis 
the  fundamental  difference  that  divides  the  two  systems  is 
embodied  in  the  fact  that  the  supreme  and  ultimate  power  in 
the  one  is  vested  in  the  omnipotent  Parliament,  in  the  other 
in  the  Supreme  Court  of  the  United  States.  A  practical  illus- 
tration may  be  drawn  from  existing  conditions.  There  is  in 
England,  at  this  moment,  an  urgent  need  for  the  abolition  or 
reform  of  the  House  of  Lords.  To  the  omnipotent  Parliament 
the  entire  subject  is  committed,  —  the  last  word  must  de- 
termine the  new  form  the  Constitution  is  to  assume.  In  the 
United  States  the  transition  from  individualism  to  collectiv- 
ism has  wrought  a  revolution  in  economic  conditions  whose 
outcome  involves  the  right  of  the  national  government  to 
abolish  or  seriously  modify  trusts  and  monopolies.  Congress 
has  exhausted  its  legislative  power,  and  it  now  remains  for 
the  Supreme  Court  to  determine  whether  or  no  its  efforts  have 
been  efficacious.  By  judicial  construction  the  Sherman  Anti- 
Trust  Law  may  be  paralyzed,  as  it  was  in  United  States  v. 
the  Knight  Co. ;  or  it  may  be  given  full  effect,  as  it  was  in  the 
Northern  Securities  Company  case ;  or  it  may  be  given  a  lim- 
ited effect  by  a  compromise  judgment  pausing  midway  be- 
tween the  two.  As  it  is  entirely  impracticable  as  a  general 
rule  to  amend  the  Federal  Constitution  in  a  formal  way  to  meet 
the  changed  conditions  incident  to  growth,  it  only  remains  for 


X.]     SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  299 

Congress  to  make  a  tentative  effort  when  serious  changes  Congress 
become  necessary,  subject  to  the  final  revising  power  of  the 
Supreme  Court  of  the  United  States.  Such  an  effort  upon  power, 
the  part  of  Congress  may  be  annulled  entirely  as  unconstitu- 
tional, or  its  act  may  be  given  by  the  Court  an  operation  and 
effect  never  intended  by  the  legislature.  In  all  advancing 
societies  the  problem  of  problems  is  that  involved  in  the  expan- 
sion and  readjustment  of  constitutions  and  codes  to  changed 
conditions  arising  out  of  growth.  As  the  British  Empire  has 
expanded,  that  function  has  been  performed  chiefly  by  the 
omnipotent  Parliament ;  as  the  American  Commonwealth  has 
expanded,  that  function  has,  for  two  reasons,  been  performed 
chiefly  by  the  Supreme  Court  of  the  United  States.  Those 
reasons  are :  first,  the  difficulty  of  formal  constitutional  amend- 
ment; second,  the  power  of  the  Supreme  Court  to  annul 
national  laws,  or  to  remould  them  by  construction. 

According  to  the  first  census  the  population  of  the  original  Struggle  be- 
thirteen  states  and  two  territories  was  3,673.57°,  possessed  of 
843,246  square  miles.1  According  to  the  twelfth  census  the  spirit. 
population  of  forty-six  states  and  two  territories  is  91,972,266, 
possessed  of  2,974,159  square  miles.  Throughout  that  pro- 
cess of  growth  and  expansion  there  has  been  an  eternal  war- 
fare between  two  antagonistic  principles,  each  struggling  for 
the  mastery.  The  one  was  the  old  provincial  spirit  embod- 
ied in  the  first  Constitution,  the  other  was  the  new  national 
spirit  embodied  in  the  existing  Constitution.  The  potent  ally 
of  the  former  was  slavery;  the  potent  ally  of  the  latter  was  the 
ever  increasing  force  of  intercommunication.  At  the  end  of 
the  Revolutionary  War  the  people  who  dwelt  in  the  straggling 
series  of  republics  long  drawn  out  along  the  Atlantic  seaboard 
had  so  dim  a  sense  of  union,  and  were  so  deeply  imbued  with  Dim  sense  of 
the  love  of  local  self-government,  that  Josiah  Tucker,  Dean  ™|™at  the 
of  Gloucester,  in  ridiculing  the  idea  that  they  could  ever  be 
united  "under  one  head,  whether  republican  or  monarchical,"  / 
said:  "They  can  never  be  united  into  one  compact  empire 
under  any  species  of  government  whatever;  a  disunited  people 
till  the  end  of  time,  suspicious  and  distrustful  of  each  other, 
they  will  be  divided  and  subdivided  into  little  commonwealths 
or  principalities,  according  to  national  boundaries,  by  great 
1  See  A  Century  of  Population  Growth  in  the  U.  S.t  1790-1900, 47,  51, 54. 


300 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Presence  of 

slavery. 


Influence 
of  intercom- 
munication. 


bays  of  the  sea,  and  by  vast  rivers,  lakes,  and  ridges  of  mount- 
ains." 1 

Pronounced  as  such  conditions  were,  they  were  gravely 
intensified  by  the  presence  of  slavery,  which  did  so  much  in 
its  day  to  render  impossible  a  real  chemical  union  between 
a  slaveholding  section,  with  distinct  feelings,  interests,  and  pe- 
culiarities, and  a  section  never  willing  to  do  more  than  to  toler- 
ate its  existence  in  the  other.  The  natural  outcome  of  that 
antagonism  was  the  seventy  years'  struggle  for  the  extension 
of  slavery  into  the  new  states  which  has  been  outlined  already. 
Against  such  mighty  forces,  all  making  for  disunion,  the  new 
national  spirit  embodied  in  the  second  Constitution  would 
have  been  helpless,  despite  the  strength  of  its  nationalizing 
machinery  operating  directly  on  the  individual,  had  it  not  been 
for  the  unifying  force  of  rapid  intercommunication.  Without 
the  steamboat,  the  locomotive  engine,  and  the  telegraph,  exist- 
ing conditions  would  have  been  impossible.  Except  such  large 
freight  as  went  by  sea  around  Cape  Cod,  two  large  coaches 
were  enough  in  1783  for  all  the  travelers,  and  nearly  all  the 
freight  besides,  that  passed  between  Boston  and  New  York. 
A  revolution  was  wrought  in  the  travel  and  commerce  of  this 
country  through  a  transition  from  the  primitive  and  ineffect- 
ual means  of  transportation  by  pack-horse,  stage,  and  wagon 
to  the  new  methods  resulting  from  the  application  of  steam  to 
locomotion  on  land  as  well  as  water.  The  growth  of  the  new 
national  system  embodied  in  the  existing  Constitution  was 
made  possible  only  through  the  new  methods  of  intercommun- 
ication. It  is  doubtful  whether  without  their  aid  the  Union 
could  have  been  preserved ;  it  is  certain  that  without  their  aid 
the  existing  conception  of  national  unity  could  never  have 
been  brought  about.  No  thinking  mind  can  reject  Savigny's 
contention  that  law,  constitutional  law,  is  part  and  parcel  of 
the  national  life ;  it  is  the  outcome  of  the  consciousness  of  the 
people  like  their  social  habits  or  their  language. 

Through  the  operation  of  the  nationalizing  forces  to  which 
reference  has  been  made,  the  old  provincial  conception  of  local 


1  "That  in  the  creation  of  the 
United  States  the  world  had  reached 
one  of  the  turning-points  in  its  his- 
tory, seems  at  the  time  to  have  en- 


tered into  the  thought  of  not  a 
single  European  statesman."  Green, 
History  of  the  English  People,  iv, 
272. 


X.]     SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  301 

self-government,  intensified  in  one  section,  as  it  was,  by  the 
existence  of  slavery,  has  been  forced  to  yield  to  the  new  na-  New  con- 
tional  conception  by  which  the  original  view  of  the  rights  of 
the  states  as  sovereign  communities  has  been  modified  without 
being  vitally  impaired.  In  that  process  of  nationalization  an  in- 
dependent individualism,  which  feared  and  resented  at  the  out- 
set nearly  every  form  of  state  control,  has  been  taught  to  appeal 
to  governments,  state  and  federal,  for  constant  interference 
in  the  daily  life  of  the  citizen.  The  result  has  been  a  narrowing  Narrowing 
circle  of  individual  rights.  As  a  very  distinguished  jurist  has  c\rcle  of  mdi- 

..        vidual  rights. 

recently  expressed  it:  It  is  no  longer  the  preservation  of  a 
strong  and  independent  individualism  that  is  the  object  of 
solicitude.  It  is  the  creation  of  a  state  of  dependence  of  the 
individual  for  his  safety  on  the  state.  .  .  .  Down  to  and  be- 
yond the  era  of  the  American  and  French  Revolution,  he  [the 
citizen]  had  everywhere  distrusted  the  state.  He  feared  and 
sought  to  reduce  its  power.  He  did  reduce  it,  wherever  the 
community  was  strong  enough  to  make  an  effectual  resistance. 
He  had  succeeded  in  his  efforts,  by  the  middle  of  the  nineteenth 
century,  in  the  greater  part  of  the  civilized  world.  He  tied  the 
hands  of  government  by  written  constitutions,  when  he  could, 
and  was  careful  to  declare  in  these  constitutions  what  he 
deemed  to  be  his  own  fundamental  inviolable  rights."1  As  we 
have  passed  from  a  state  of  provincial  isolation  into  a  state  of 
real  national  unity,  so  we  have  passed  from  an  age  of  individ- 
ualism to  an  age  of  collectivism.  "It  is  the  age  of  collectivism.  The  age  of 
The  functions  of  the  state  multiply.  Its  circle  of  activities  collectivism- 
expands,  and  the  circle  of  activities  around  each  private  indi- 
vidual is  correspondingly  reduced."2  Nothing  could  be  more 
distinct  than  the  paths  along  which  the  American  people  have 
passed  in  their  progress  from  provincial  isolation  to  national 
unity;  from  an  independent  individualism  to  a  collectivism 
corresponding  to  that  now  existing  in  most  of  the  highly  civil- 
ized nations. 

The  transformations  that  have  thus  taken  place   in  the 
national  life  of  the  American  people  have  expressed  them- 

1  Chief  Justice  Simeon  E.  Bald-  of    West    Virginia,    December    29, 

win,    "The    Narrowing    Circle    of  1908,  pp.  2,  3. 
Individual  Rights,"  an  address  de-          *  Ibid.  9. 
livered  before  the  Bar  Association 


302 


THE  AMERICAN  CONSTITUTION 


[CH. 


Sixty-one 
years  without 
a  constitu- 
tional amend- 
ment. 


Opposition  to 
new  national 
system. 


A  Southern 
confederacy 
to  be  based 
on  slavery. 


selves  in  no  uncertain  terms  in  their  constitutions  and  laws, 
which  are  but  one  though  a  vitally  important  aspect  of  it.  As 
all  the  world  knows,  the  process  of  constitutional  growth  has 
been  aided  but  little  by  amendments  made  through  the  cum- 
brous machinery  provided  by  the  Constitution  itself.  During 
the  most  important  period  of  growth  no  successful  attempt  was 
made  to  amend  the  Constitution  at  all.  Reference  is  made  to 
the  sixty-one  years  that  intervened  between  the  ratification  of 
the  Twelfth  Amendment,  September  25,  1804,  and  that  of  the 
Thirteenth,  December  18,  1865.  The  primary  purpose  of  this 
chapter  will  be  to  outline  the  death-grapple  during  that  epoch 
between  the  old  provincial  forces,  aided  by  slavery,  and  the 
new  national  forces,  aided  by  the  growing  power  of  intercom- 
munication down  to  the  triumph  of  the  latter  through  the 
results  of  the  Civil  War. 

An  effort  has  been  made  already  to  demonstrate  that  only 
the  impending  anarchy  that  threatened  the  country  in  1786-87, 
with  an  entire  dissolution  of  the  pretense  of  federal  govern- 
ment then  existing,  enabled  the  nationalists  to  force  the  states 
to  assemble  at  Philadelphia  for  the  final  experiment.  So  bitter 
was  the  opposition  in  certain  quarters  that  delegates  from 
Rhode  Island  never  appeared  at  all,  while  those  from  the  great 
State  of  New  York  were  withdrawn  at  the  critical  moment 
through  the  influence  of  Clinton,  who  openly  declared  that  no 
good  was  to  be  expected  from  the  efforts  of  the  advocates  of 
despotism 1  who  were  proposing  to  make  a  new  constitution. 
Such  was  the  spirit  of  the  opposition  to  the  new  national 
system  that  contested  its  adoption  in  all  the  states  under  the 
leadership  of  such  men  as  Patrick  Henry,  Richard  Henry  Lee, 
and  Thomas  Nelson,  whose  efforts  might  have  been  successful 
had  it  not  been  for  the  patriotism  of  Maryland  and  South 
Carolina  in  refusing  to  consider  the  designs  of  the  first-named 
for  an  independent  Southern  confederacy  to  be  based  on 
•slavery.  And  yet,  after  the  triumph  of  the  nationals  or  federals 
under  the  lead  of  Washington,  assisted  by  his  great  lieutenants, 
Madison  and  Hamilton,  it  is  a  comfort  to  know  that  even 
Patrick  Henry  and  Mason  acquiesced  in  the  result  without 


1  He  claimed  that  after  a  longer 
trial  the  Confederation  would  be 
found  to  answer  all  the  purposes 


of  the  Union.   Penn.  Packet,  26th 
July,  1787. 


X.]      SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  303 

malignity.    They  had  been  beaten  down  by  the  master.   As 
Monroe  wrote  to  Jefferson:  "Be  assured,  Washington's  influ-  Washington's 
ence  carried  this  government." l    He  believed  with  James  Wil-  triumPh- 
son,  who  said  in  the  Federal  Convention  of  1787:  "By  adopt- 
ing this  constitution  we  shall  become  a  nation;  we  are  not 
now  one.  We  shall  form  a  national  character;  we  are  now 
too  dependent  on  others."  2 

When  the  new  government  was  set  in  motion  under  the  pre- 
sidency of  Washington,  with  Hamilton,  the  typical  Federalist, 
as  the  organizing  statesman,  assisted  by  the  genius  of  Madison 
in  the  House  of  Representatives,  this  country  was  inferior  in 
population  and  wealth  to  Holland;  it  stood  but  little  above 
the  level  of  Denmark  or  Portugal.  Its  first  real  assertion  of 
national  power  was  through  Hamilton's  excise  tax  on  distilled  Hamilton's 
spirits,  which  was  made  necessary  by  the  assumption  of  the  excis 
state  debts.  That  tax  pressed  with  special  severity  upon  the 
settlers  in  the  western  counties  of  Pennsylvania  and  Virginia, 
who  had  discovered  that  it  was  more  profitable  to  distill  their 
corn  and  wheat  into  whiskey  than  to  carry  it  to  market  by 
almost  impassable  roads.  Lying  within  a  disputed  district  be- 
tween the  two  states,  these  settlers  had  escaped  from  vexatious 
interference  from  either.  When  they  were  prompted  by  their 
isolation  to  set  up  for  themselves,  the  Supreme  Executive 
Council  of  Pennsylvania  had  sent  in  1783  a  special  agent  to 
remonstrate  with  "those  deluded  citizens  in  ye  western  coun- 
ties who  seemed  disposed  to  separate  from  ye  commonwealth 
and  erect  a  new  and  independent  state."  It  is  not,  therefore, 
strange  that  when  this  direct  tax  was  levied  directly  upon  the 
distillation  of  whiskey,  these  independent  and  isolated  mount- 
aineers, who  considered  that  their  industry  had  been  invid- 
iously selected  for  persecution,  should  have  threatened  to  take 
up  arms  when  the  revenue  officers  came  to  collect  it.  At  the 
critical  moment  in  1794,  Washington  instantly  sent  an  army  of  Whiskey 
sixteen  thousand  men  into  the  rebellious  region,  by  which  the  JJf 
threatened  revolt  was  suppressed.  Thus  the  first  demonstra- 
tion was  made  that  the  new  government  possessed  not  only 
the  power  to  levy  direct  federal  taxes  but  the  nerve  to  trample 
upon  all  provincial  opposition  to  their  collection. 

About  this  time  it  was  that  Washington  settled  the  fact  that 

1  July  12,  1788,  MS.  2  Madison  Papers,  ii,  921. 


304 


THE  AMERICAN  CONSTITUTION 


[CH. 


Neutrality 
proclamation 
of  1793- 


John  Adams' 
and  French 
Directory. 


Alien  and 
Sedition  Laws, 
1798. 


he  was  to  be  no  less  firm  in  dealing  with  foreign  nations.  When 
in  April,  1793,  news  was  received  that  the  French  Republic  had 
declared  war  against  Great  Britain  and  Holland,  a  condition 
that  made  it  easy  for  us  to  drift  into  war  as  the  ally  of  France, 
Washington,  despite  the  opposing  current  of  popular  feeling, 
on  April  22,  by  the  unanimous  advice  of  his  cabinet,  issued  a 
proclamation  of  neutrality  between  the  French  Republic  and 
her  enemies.  As  that  act  involved  the  assumption  that  the 
former  treaty  of  alliance  was  really  at  an  end,  including  its 
guaranty,  by  reason  of  the  change  of  government  in  France, 
there  was  an  outburst  of  rage  against  the  President,  who  was 
accused  by  the  Republicans  as  being  not  only  an  enemy  of 
France  but  of  republican  institutions.  So  firmly  did  he  stand 
his  ground  that  Citizen  Genet  —  who  attempted  to  violate  the 
neutrality  of  the  United  States  by  granting  commissions  to 
American  citizens  to  fit  out  privateers  manned  by  Americans 
to  cruise  against  English  commerce  —  was  recalled.  As  a  re- 
cognition of  the  justice  of  the  President's  course  the  Provisory 
Council  of  the  French  Republic  demanded  "the  arrest  of  Mr. 
Genet  and  all  the  other  agents  who  may  have  participated  in 
his  faults  and  sentiments." 

While  a  patriotic  courtesy  prompted  Washington  to  dis- 
claim party  affiliations,  he  was  the  king  of  the  Federalists, 
and  as  such  he  passed  on  the  new  national  power  to  John 
Adams,  who  began  in  1797  to  battle  with  the  French  Directory, 
incensed  against  this  country  by  reason  of  its  strict  neutral- 
ity and  also  by  reason  of  the  treaty  of  peace  recently  entered 
into  between  England  and  the  United  States.  The  burst  of 
indignation  that  followed  the  publication  of  the  "X.  Y.  Z. 
dispatches"  seemed  for  the  moment  to  overwhelm  the  Re- 
publicans and  to  bolster  up  the  Federalists,  who  had  been  losing 
ground.  In  that  moment  of  overconfidence  they  made  the 
fatal  mistake,  in  the  hope  of  strengthening  the  government 
still  further,  of  passing  during  the  summer  of  1798  the  two  acts 
of  Congress,  known  as  the  Alien  and  Sedition  Laws,  which  were 
distinctly  partisan.  Intense  hostility  to  France  by  reason  of 
her  aggressions  upon  American  commerce  eliminated  party 
divisions  for  a  time  and  gave  over  both  Houses  to  Federalist 
control.  As  the  leading  Republican  journalists  were  in  the 
1  For  a  full  statement  see  Taylor,  International  Pub.  Law,  351-2, 640  sq. 


X.]      SIXTY-ONE    YEARS  OF  CONSTITUTIONAL  GROWTH  305 

main  refugee  foreigners  who  had  excited  their  opponents  by 
scurrilous  and  violent  attacks,  the  Federalists,  after  providing 
for  an  increase  of  the  army  and  navy,  undertook  to  muzzle 
these  aliens  by  three  alien  laws.  The  essence  of  the  first,  an 
amendment  of  the  naturalization  laws,  was  a  substitution  of 
fourteen  years'  previous  residence  for  five ;  alien  enemies  could 
not  become  citizens  at  all ;  in  a  register  to  be  kept  of  all  aliens 
resident  in  this  country  their  names  were  to  be  entered  under 
penalties  in  case  of  neglect.  The  essence  of  the  second,  passed 
June  25,  and,  limited  by  its  terms  to  two  years,  was  an  author- 
ity to  the  Executive  to  expel  from  the  country  all  such  aliens 
as  might  be  deemed  dangerous  to  its  peace  and  safety,  or  such 
as  might  be  suspected  of  treasonable  designs  against  it.  The 
essence  of  the  third  was  an  authority  to  the  Executive,  in  the 
event  of  war  or  invasion,  to  apprehend,  secure,  or  remove  all 
resident  aliens,  natives,  or  citizens  of  the  hostile  nation,  upon 
a  proclamation  to  that  effect  to  be  issued  at  his  discretion. 
Turning  then  from  aliens  to  native-born  citizens,  a  sedition  law 
was  devised  to  define  more  exactly  the  law  of  treason,  and  to 
define  and  punish  the  crime  of  sedition.  The  practical  purpose 
of  this  law,  which  was  to  expire  March  3,  1801,  was  to  fine  and 
imprison  such  as  should  combine  or  conspire  to  oppose  any 
measure  of  the  Government,  and  such  as  should  utter  any 
scandalous,  false,  or  malicious  writing  against  the  President, 
Congress,  or  Government  of  the  United  States.  In  a  word,  its 
primary  purpose  was  to  advance  the  interests  of  the  party  in 
power  by  restraining  the  freedom  of  speech  and  of  the  press,  Attempt 
while  enlarging  at  the  same  time  the  scope  of  the  federal  judi-  freedom^ 
ciary  through  an  implied  recognition  of  its  common-law  crim-  discussion, 
inal  jurisdiction.  Under  the  Sedition  Law  there  were  at  least 
six  prosecutions;  under  the  Alien  Law  there  were  none  at  all. 
But  it  was  not  so  much  the  oppressive  execution  of  these  laws 
as  the  principles  embodied  in  them  that  aroused  to  action  the 
Republicans,  who  claimed  they  were  a  political  weapon  directed 
against  them.  This  tyrannical,  and,  in  part,  unconstitutional 
legislation  thus  enacted  by  the  Federalists  —  "who,  allowing 
little  for  the  good  sense  and  spirit  of  Americans,  or  our  geo- 
graphical disconnection  with  France,  were  crazed  with  the 
fear  that  this  Union  might  be,  like  Venice,  made  over  to  some 
European  potentate,  or  chained  in  the  same  galley  with  Switz- 


306 


THE  AMERICAN  CONSTITUTION 


[CH. 


Kentucky  and 
Virginia  Reso- 
lutions, 1798. 


Additional 
Kentucky 
Resolution 
of  1799. 


erland  or  Holland,  to  do  the  Directory's  bidding"1  —  drew 
from  the  Republicans  the  counterblasts  embodied  in  the 
famous  Kentucky  and  Virginia  Resolutions  of  1798. 

In  November  of  that  year  the  Kentucky  Legislature  passed 
a  series  of  resolutions  formulated  by  Jefferson,  who  intrusted 
them  to  George  Nicholas  under  a  pledge  that  "it  should  not 
be  known  from  what  quarter  they  came."  Not  until  1821  did 
the  son  of  the  reputed  father  of  the  resolutions  draw  from 
Jefferson  an  acknowledgment  of  their  paternity.  The  first  of 
these  resolutions,  nine  in  number,  declared  in  part  "that  the 
several  states  composing  the  United  States  of  America  are 
not  united  on  the  principle  of  unlimited  submission  to  their 
general  government;  but  that,  by  compact,  uncler  the  style 
and  title  of  the  Constitution  of  the  United  States,  and  of 
amendments  thereto,  they  constituted  a  general  government 
for  special  purposes,  delegated  to  that  government  certain 
definite  powers,  reserving,  each  state  to  itself,  the  residuary 
mass  of  right  to  their  own  self-government;  and  that  when- 
soever the  general  government  assumes  undelegated  powers, 
its  acts  are  unauthoritative,  void,  and  of  no  force."  The  second 
declared  the  Sedition  Law  "void  and  of  no  effect,"  because 
Congress  possessed  no  power  to  punish  crimes  not  mentioned 
in  the  Constitution,  while  the  third  based  the  same  assertion 
on  the  ground  that  it  abridged  the  freedom  of  speech  and  of 
the  press.  The  fourth,  fifth,  and  sixth  attacked  the  Alien  Law 
on  constitutional  grounds,  while  the  seventh  denounced  broad 
construction  in  general  as  "a  fit  and  necessary  subject  for 
revisal  and  correction  at  a  time  of  greater  tranquillity,  while 
those  specified  in  the  preceding  resolutions  call  for  immediate 
redress."  The  eighth  and  ninth  direct  the  manner  of  their 
transmission  to  federal  representatives  and  to  state  executives 
with  the  warning  that,  if  no  action  be  taken  against  such  un- 
constitutional exercise  of  national  power,  "no  rampart  now 
remains  against  the  passions  and  the  power  of  the  majority 
in  Congress." 

The  additional  Kentucky  Resolution  of  1799,  after  repeating 

its  definition  of  the  Constitution  as  "a  compact,"  declares 

"  that  the  several  states  which  formed  that  instrument,  being 

sovereign  and  independent,  have  the  unquestionable  right  to 

1  Schouler,  Hist,  of  the  U.  S.,  i,  411;  Randall's  Jefferson,  ii,  444. 


X.]     SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  307 

judge  of  its  infraction;  that  a  nullification,  by  those  sovereign- 
ties, of  all  unauthorized  acts,  done  under  color  of  that  instru- 
ment, is  the  rightful  remedy;  that,  although  this  common- 
wealth, as  a  party  to  the  federal  compact,  will  bow  to  the  laws 
of  the  Union,  yet  it  does,  at  the  same  time,  declare  that  it  will 
not  now  or  ever  hereafter  cease  to  oppose,  in  a  constitutional 
manner,  every  attempt,  at  what  quarter  soever  offered,  to 
violate  that  compact;  and  finally,  in  order  that  no  pretext  or 
arguments  may  be  drawn  from  a  supposed  acquiescence,  on 
the  part  of  this  commonwealth,  in  the  constitutionality  of 
those  laws,  and  be  thereby  used  as  precedents  for  similar 
future  violations  of  the  federal  compact,  this  commonwealth 
does  now  enter  against  them  its  solemn  protest." 

In  December  of  the  same  year  the  Virginia  Legislature  passed  Virginia 
a  similar  series  of  resolutions,  eight  in  number,  substantially  ^j^^18 
identical  in  thought  and  feeling,  ostensibly  prepared  by  Madi-  Madison. 
son,1  then  a  member  of  that  legislature.  Passing  over  the  first, 
declaring  the  purpose  of  the  legislature  to  defend  the  consti- 
tutions, federal  and  state;  and  the  second,  professing  a  firm 
attachment  to  the  Union,  —  emphasis  should  be  given  to 
the  third,  which  declared  "that  this  assembly  doth  explic- 
itly and  peremptorily  declare  that  it  views  the  powers  of 
the  Federal  Government,  as  resulting  from  the  compact  to 
which  the  states  are  parties,  as  limited  by  the  plain  sense  and 
intention  of  the  instrument  constituting  that  compact,  as  no 
further  valid  than  they  are  authorized  by  the  grants  enumer- 
ated in  that  compact ;  and  that  in  case  of  a  deliberate,  palpable, 
and  dangerous  exercise  of  other  powers,  not  granted  by  the 
said  compact,  the  states  which  are  parties  thereto,  have  the 
right,  and  are  in  duty  bound,  to  interpose,  for  arresting  the 
progress  of  the  evil,  and  for  maintaining  within  their  respective 
limits  the  authorities,  rights,  and  liberties  appertaining  to 
them."  The  fourth  predicts  that  broad  constitutional  construc- 
tion will  end  in  converting  our  republican  system  into  "at  best 
a  mixed  monarchy";  the  fifth  and  sixth  denounce  the  Alien 
and  Sedition  Laws  as  unconstitutional;  the  seventh  expresses 

1  Even  when  they  were  in  the  cial  request  of  the  latter,  Jefferson 

presidential    office    both    Madison  wrote  the  so-called  "Monroe  Doc- 

and  Monroe  looked  to  Jefferson  for  trine."   See  Taylor,  Int.  Public  Law, 

intellectual  guidance.    By  the  spe-  141  53. 


308 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Jefferson  the 
real  author 
of  both  sets. 


Rousseau 
and  the 
Contrat 
Social. 


the  affection  of  Virginia  for  the  other  states ;  the  other  requests 
the  transmission  of  the  resolutions  to  federal  officials  and  state 
executives. 

How  can  any  critical  student  fail  to  perceive,  when  these  two 
sets  of  resolutions  are  placed  side  by  side,  that  they  are  the 
product  of  a  single  mind  overshadowed  by  a  single  thought? 
No  matter  what  Jefferson's  motives  were  for  acting  secretly  in 
this  grave  matter,  the  fact  remains  that  from  behind  a  mask 
he  offered  two  phases  of  a  single  composition,  substantially 
the  same  in  form  and  substance,  to  two  legislatures.  In  Ken- 
tucky he  acted  through  George  Nicholas;  in  Virginia  through 
James  Madison,  whose  conduct  in  the  making  and  adopt- 
ing of  the  Constitution  clearly  indicated  that  he  was  then  as 
Federalist  as  Washington,  whose  lieutenant  he  was.1 

No  argument  is  necessary  to  demonstrate  the  extent  to 
which  Jefferson  was  imbued  with  the  politics  of  the  French 
Revolution,  whose  basic  idea  was  drawn  from  the  social  con- 
tract theory  of  Jean  Jacques  Rousseau.  A  great  critic  has  said 
that  "Rousseau  was  more  popular  than  Locke,  and  more  dog- 
matic than  Hobbes.  The  result  was,  the  Contrat  Social  became 
one  of  the  most  successful  and  fatal  of  political  impostures."  2 
The  same  writer  says  that  the  historical  importance  of  Rous- 
seau's political  system  "is  that  it  is  in  great  measure  answer- 
able for  the  Declaration  of  the  Rights  of  Man.  .  .  .  The  birth 
of  all  men  free  and  with  equal  rights,  the  collective  sovereignty 
of  the  nation,  and  the  'volonte  generate' z  which  positive  laws 
express,  are  taken  straight  from  Rousseau."  The  thin  veneer  of 
French  philosophy  superimposed  by  Jefferson  upon  the  solid 
substructure  of  English  constitutional  law  that  underlies  the 
Declaration  of  Independence  did  no  harm,  —  it  was  innocu- 
ous. But  when  the  time  came  for  him  to  attempt  to  embody 
in  our  political  system,  through  the  Kentucky  and  Virginia 
Resolutions,  the  idea  that  a  constitution  is  a  mere  contract  or 
"compact,"  as  viewed  by  the  Rousseau  school,  it  was  quite 


1  See  Madison's  speeches  in  the 
Federal  Convention,  in  which  he  so 
bitterly  opposed  the  equal  repre- 
sentation of  the  states  in  the  Senate ; 
especially  Madison  Papers,  ii,  982, 
where  he  says:  "The  true  policy  of 
the  small  states,  therefore,  lies  in 


promoting  those  principles  and  that 
form  of  government  which  will  most 
approximate  the  states  to  the  con- 
dition of  counties." 

2  Sir  Frederick  Pollock,  Hist,  of 
the  Science  of  Politics,  75. 

8  Ibid.  79. 


X.]      SIXTY-ONE    YEARS  OF  CONSTITUTIONAL  GROWTH  309 

another  matter.  Holland  tells  us  that  "since  the  assertion  of 
the  'rights  of  man'  which  preceded  the  French  Revolution,  the 
written  enactment  of  such  fundamental  principles  has  not 
been  uncommon,  as  well  on  the  European  continent  as  in 
America."  *  But  the  immense  difference  that  divides  a  written 
constitution  in  the  United  States  from  a  written  constitution 
in  France  is  embodied  in  the  fact  that  in  the  former  the  supreme 
and  final  power  to  determine  when  its  terms  have  been  in- 
fringed is  vested  in  the  courts  as  a  function  purely  judicial. 
The  fundamental  heresy  embodied  by  Jefferson  in  both  sets  of  Jefferson's 
resolutions  —  a  heresy  that  had  to  be  burnt  out  in  the  fires  deadly  h< 
of  civil  war  —  was  that  over  the  violation  of  a  constitution, 
considered  as  a  "compact,"  there  is  no  common  judge.  In  the 
Kentucky  Resolutions  he  expresses  the  idea  in  these  explicit 
terms :  "But  that,  as  in  all  other  cases  of  compact  among  parties 
having  no  common  judge,  each  party  has  an  equal  right  to 
judge  for  itself,  as  well  of  infractions  as  of  the  mode  and 
measure  of  redress."  In  the  third  of  the  Virginia  Resolutions 
the  unauthorized  exercise  of  "the  powers  of  the  Federal  Gov- 
ernment as  resulting  from  the  compact  to  which  the  states 
are  parties"  is  to  be  passed  upon  —  not  by  the  Supreme 
Court  of  the  United  States  —  but  by  "the  states  which  are 
parties  thereto."  There  is  no  mistiness  of  language,  there  is  no 
confusion  of  thought.  Jefferson's  clean-cut  and  drastic  pro- 
position as  embodied  in  both  sets  of  resolutions  was  that 
American  written  constitutions  should  be  considered  only  as 
"compacts"  in  the  French  sense,  as  to  whose  infractions  the 
courts  have  no  power  to  judge. 

Great  as  Jefferson  was,  patriotic  and  wise  as  he  was,  the  one  His  failure  to 
defect  in  an  otherwise  exquisite  mind  was  an  utter  lack  of 
appreciation  of  the  importance  of  the  judicial  power,  as  a 
supreme  arbitrating  power.  It  may,  however,  be  said  in  his 
defense  that  in  1798  the  Supreme  Court  of  the  United  States 
was  still  in  eclipse;  in  1801  Jay  abandoned  it  on  the  ground  that 
"it  would  not  obtain  the  energy,  weight,  and  dignity  which 
was  essential  to  its  affording  due  support  to  the  national 
government."2  When  Jefferson  came  into  power,  March  4, 
1 80 1,  his  first  move  was  to  direct  a  systematic  and  well-organ- 
ized attack  upon  the  federal  judiciary.  But  a  kind  provid- 

1  Jurisprudence,  362.  a  See  Pellew's  Life  of  Jay,  339. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Nullification 
and  secession. 


/ 


V  A  constitution 
not  "a  com- 
pact." 


Marshall's 
doctrine. 


ence  so  ordered  that,  just  one  month  before,  John  Marshall 
had  taken  his  seat  in  that  high  place  in  which  he  sat  as  the  chief 
in  the  midst  of  six  associates  for  thirty-four  years.  Before  that 
great  career  ended  he  had  uprooted  and  cast  out,  so  far  as  the 
judicial  power  could  uproot  and  cast  out,  the  fundamental 
concept,  drawn  by  Jefferson  from  the  politics  of  the  French 
Revolution,  which  asserted  that  the  infractions  of  American 
constitutions,  like  those  of  France,  are  beyond  the  jurisdiction 
of  the  judicial  power. 

Out  of  the  Pandora's  Box  opened  by  Jefferson  in  the  Ken- 
tucky and  Virginia  Resolutions  came  the  closely  related  doc- 
trines of  nullification  and  secession  which  were  extinguished 
once  and  forever  by  the  Civil  War.  Mr.  Bryce  has  thus  recently 
summed  up  the  whole  matter:  "The  drily  legal  and  practical 
character  of  the  Constitution  did  not  prevent  the  growth  of  a 
mass  of  subtle  and,  so  to  speak,  scholastic  metaphysics  regard- 
ing the  nature  of  the  government  it  created.  The  inextricable 
knots  which  American  lawyers  and  publicists  went  on  tying, 
down  till  1 86 1,  were  cut  by  the  sword  of  the  North  in  the  Civil 
War,  and  need  concern  us  no  longer.  It  is  now  admitted  that 
the  Union  is  not  a  mere  compact  between  commonwealths, 
dissoluble  at  pleasure,  but  an  instrument  of  perpetual  efficacy, 
emanating  from  the  whole  people,  and  alterable  by  them 
only  in  the  manner  which  its  own  terms  prescribe.  It  is  'an 
indestructible  union  of  indestructible  states.'"1 

The  whole  system  of  "scholastic  metaphysics  regarding  the 
nature  of  the  government,"  the  tying  of  the  "inextricable 
knots  which  American  lawyers  went  on  tying,  down  till  1861," 
all  date  from  the  promulgation  by  Jefferson  in  1798  of  the 
purely  fanciful  theory  that  an  American  constitution  is  a 
"compact"  in  the  French  sense,  and  as  such  beyond  the  juris- 
diction of  the  supreme  judicial  power,  —  and  not  "an  instru- 
ment of  perpetual  efficacy"  construable  by  that  power.  Upon 
that  indefensible  word  "compact"  were  based  all  of  the  subtle 
and  untenable  theories  embodied  in  the  "scholastic  meta- 
physics" of  Calhoun.  Marshall  clearly  taught  that  an  Ameri- 
can constitution  is  not  a  "compact"  but  "an  instrument  of 
perpetual  efficacy,"  when  in  McCulloch  v.  Maryland,2  he  held 
that  the  government  of  the  Union  is  a  government  of  the  peo- 
1  American  Commonwealth,  i,  322-323.  *  4  Wheat.  316. 


X.]      SIXTY-ONE    YEARS  OF  CONSTITUTIONAL  GROWTH  311 

pie,  emanating  from  them,  and  deriving  its  powers  from  them. 
Though  limited  in  its  powers,  it  is  supreme  within  its  sphere, 
and  its  laws  are  the  supreme  law  of  the  land.  In  that  case  he 
said:  "A  constitution,  to  contain  an  accurate  detail  of  all  the 
subdivisions  of  which  its  great  powers  will  admit,  and  of  all  the 
means  by  which  they  may  be  carried  into  execution,  would 
partake  of  the  prolixity  of  a  legal  code,  and  could  scarcely  be 
embraced  by  the  human  mind.  It  would  probably  never  be 
understood  by  the  public.  Its  nature,  therefore,  requires  that 
only  its  great  outlines  should  be  marked,  its  important  objects 
designated,  and  the  minor  ingredients  which  compose  those 
objects  be  deduced  from  the  nature  of  the  objects  themselves." 
In  his  view  all  such  deductions  were  to  be  made  by  the  judicial 
power.  The  good  work  thus  begun  by  Marshall  was  completed 
when,  in  Texas  v.  White,1  Chief  Justice  Chase  declared,  after  Chase's 
the  close  of  the  Civil  War,  that  in  the  Constitution  of  the  doctrine- 
United  States  is  embodied  "an  indestructible  union  of  inde- 
structible states."  If  we  had  accepted  from  the  outset  those 
sane  and  legitimate  definitions  of  a  constitution  as  laid  down 
by  Marshall  and  Chase,  the  untenable  assumption  that  a  con- 
stitution is  a  "compact"  —  the  outcome  of  the  now  entirely 
discredited  theory  of  the  social  contract,  which  passed  from 
Hobbes  to  Rousseau  and  from  Rousseau  to  Jefferson  —  could 
never  have  entered  the  arena  of  American  politics  with  its  long 
train  of  false  and  misleading  analogies. 

While  declining  the  moral  responsibility  for  it  at  the  time,  Jefferson's 
Jefferson  undertook  to  carry  on  a  political  propaganda  through  J^aUef  ons- 
the  resolutions  in  question,  which  were  transmitted  to  all  ibiiity. 
representatives  in  Congress  and  to  the  other  states,  with  the 
view  of  eliciting  sympathetic  responses.    The  only  responses 
actually  made  were  sharply  antagonistic  to  the  resolutions. 
Such  was  the  nature  of  the  replies  made  by  Delaware,  Febru- 
ary i,  1799,  by  Rhode  Island  in  February,  by  Massachusetts, 
February  9,  by  New  York,  March  5,  by  Connecticut,  May  9, 
by  New  Hampshire,  June  14,  by  Vermont,  October  30.  Massa- 
chusetts, in  a  long  and  argumentative  response,  took  special 
pains  to  deny  the  competency  of  any  state  legislature  "to 
judge  of  the  acts  and  measures  of  the  Federal  Government."  2 

i  7  Wall.  700. 

1  Cf.  Johnston,  American  Political  History,  1763-1876,  part  i,  p.  189. 


312 


THE  AMERICAN  CONSTITUTION 


[CH. 


Hartford  Con- 
vention, 1814. 


New  England 
opposition  to 
"restrictive 
system." 


Federalist 
opposition  to 
War  of  1812. 


Just  as  the  conflict  with  France  in  1798  led  to  the  contro- 
versy between  the  national  and  provincial  forces  out  of  which 
grew  the  Southern  manifesto  embodied  in  the  Kentucky  and 
Virginia  Resolutions  of  that  year,  so  the  conflict  with  Great 
Britain  in  1812,  for  the  establishment  of  neutral  rights,  led 
to  the  controversy  between  the  same  forces  out  of  which  grew 
the  Northern  manifesto  embodied  in  the  proceedings  of  the 
convention  that  met  at  Hartford  in  1814.  As  early  as  1781  the 
name  "Essex  Junto"  was  applied  by  John  Hancock  to  a  group 
of  leaders  centred  in  Essex  County,  Massachusetts,  who  were 
specially  obnoxious  to  the  Anti-Federalists  of  that  state  be- 
cause they  were  impelled  as  representatives  of  commercial 
interests  to  desire  a  stronger  federal  government.  Nothing  was 
more  natural  than  that  this  group,  after  the  adoption  of  the 
Constitution,  should  have  become  an  important  factor  in 
the  Federal  party  as  directed  by  Washington  and  Hamilton. 
After  the  accession  of  Adams,  the  junto,  which  allied  itself 
rather  with  Hamilton  than  with  the  President,  so  far  incurred 
his  hostility  that  he  stigmatized  them  as  a  "British  faction," 
unworthy  of  American  recognition  because,  as  he  alleged,  they 
were  chiefly  responsible  for  the  attempt  to  force  war  upon 
France  in  1798-99. 

As  in  this  group  was  embodied  in  a  pronounced  form  the 
New  England  opposition  to  the  "restrictive  system,"  it  be- 
came convenient  in  the  rest  of  the  Union,  almost  entirely 
Republican  in  politics,  to  attribute  all  the  evils  arising  out  of 
the  resistance  to  the  Embargo,  the  alleged  intention  to  secede 
in  1808,  and  the  determined  opposition  to  the  war  with  Great 
Britain  to  that  local  type  of  New  England  Federalism  which 
the  evil  spirit  of  the  "Essex  Junto"  was  supposed  to  have 
produced.  In  1812  only  in  New  England  did  the  Federal  party 
still  maintain  an  organization  as  such,  —  the  administration 
of  the  government  being  in  the  hands  of  the  Democratic- 
Republicans,  representing  a  coalition  of  the  South  and  West, 
intent  upon  war  and  an  invasion  of  Canada  in  order  to  com- 
pel Great  Britain  to  give  up  the  right  of  imprisonment,  search, 
and  paper  blockade. 

Against  the  war  declared  by  the  Act  of  June  18,  the  Federal- 
ists were  unanimously  opposed,  because,  as  they  contended, 
while  French  aggressions  had  never  really  ceased,  the  effects 


X.]      SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  313 

of  the  British  Orders  in  Council  were  not  sufficiently  damag- 
ing to  American  trade  to  warrant  the  destruction  of  what 
remained  of  it  on  that  account.  Out  of  that  spirit  of  hostil- 
ity to  the  war  grew  the  contention  of  the  governors  of  Con- 
necticut and  Massachusetts  that  they  were  required  by  law 
to  furnish  troops  only  to  suppress  insurrections,  or  repel  in- 
vasions, when,  on  June  12,  the  President  called  upon  them 
to  supply  detachments  of  militia  for  garrison  duty.  The  dis- 
position thus  manifested  in  New  England  to  construe  strictly 
and  to  resist  the  powers  of  the  Federal  Government  met  with 
such  popular  approval  there  that  in  1813  the  Federal  party 
won  a  majority  in  every  state  election;  and  when  the  Congress 
met  in  May  the  House  —  the  New  York  delegation  having 
become  largely  Federalist  —  contained  68  peace  to  112  war 
members.  Thus  emboldened  by  success,  the  legislature  of 
Massachusetts  declared  the  war  "impolitic  and  unjust,"  even 
going  so  far  as  to  refuse  votes  of  thanks  for  naval  victories 
"not  immediately  connected  with  the  defense  of  our  seacoast 
and  soil." 

From  Massachusetts  the  spirit  of  opposition  to  the  war  Massachusetts 
passed  to  all  New  England,  then  suffering  from  a  combination  storm  centre- 
of  grievances,  chief  among  which  was  the  Embargo  enacted 
to  counteract  the  British  exemption  of  that  coast,  whose  de- 
fense had  been  neglected,  from  blockade,  and  the  destruction 
of  its  commerce  and  fisheries,  for  which  infant  manufactures 
and  privateering  were  not  an  adequate  substitute.  When 
under  such  conditions  the  Massachusetts  Legislature,  on  Octo- 
ber 1 8,  1814,  accepted  the  proposal  of  a  convention  of  the  New 
England  States  to  "lay  the  foundation  of  a  radical  reform  in 
the  national  compact  by  inviting  to  a  future  convention  a 
deputation  from  all  the  other  states  in  the  Union,"  Connecti- 
cut and  Rhode  Island  promptly  followed  her  lead,  —  the  first- 
named  with  the  proviso  that  the  deliberations  were  to  be 
limited  to  matters  "not  repugnant  to  their  obligations  as 
members  of  the  Union,"  a  qualification  restated  in  substance 
by  the  other  two. 

On  December  15,  the  convention   met  at  Hartford,  with  Convention  at 
twelve  delegates  from  Massachusetts,  seven  from  Connecti-  ^ &T^d>  Dec' 
cut  and  four  from  Rhode  Island,  two  from  New  Hampshire 
and  one  from  Vermont.   After  secret  session  of  three  weeks 


314 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Scope  of  its 
work. 


The  voice  of 
Jefferson. 


, 


Changes  in 

Constitution 

recommended. 


the  twenty-six  delegates  prepared  a  report  to  their  respective 
legislatures  and  adjourned  January  15,  1815.  On  November 
1 6,  1819,  the  president,  George  Cabot,  deposited  its  journal 
with  the  Secretary  of  State  at  Boston,  and  in  1833  the  history 
of  the  Hartford  Convention  was  written  by  its  secretary, 
Theodore  Dwight,  editor  of  the  "  Hartford  Union."  With  the 
sources  of  information  thus  available,  there  is  now  no  mystery 
as  to  the  scope  of  what  was  actually  undertaken.  So  redolent 
is  the  report  of  the  aroma  of  the  Kentucky  and  Virginia  Reso- 
lutions that  it  is  hard  to  forget  for  the  moment  that  they  were 
not  a  New  England  product.  In  the  proposal  for  the  meeting 
the  Constitution  is  called  "the  national  compact,"  which  is 
not  to  be  dissolved,  unless  such  a  dissolution  should  be  neces- 
sary "by  reason  of  the  multiplied  abuses  of  bad  administra- 
tions; it  should,  if  possible,  be  the  work  of  peaceable  times  arid 
deliberate  consent."  It  gravely  proposed  that  Congress  should 
confide  to  the  states  their  own  defense,  a  certain  proportion  of 
the  taxes  raised  in  the  respective  states  to  be  paid  into  the 
state  treasuries  for  that  purpose.  With  that  proposal  was 
coupled  the  declaration  that  "it  is  as  much  the  duty  of  the 
state  authorities  to  watch  over  the  rights  reserved  as  of  the 
United  States  to  exercise  the  powers  which  are  delegated." 
One  can  almost  hear  in  these  words  the  voice  of  Jefferson 
repeating  that  when  there  has  been  an  exercise  of  federal 
powers  not  granted  "by  the  said  compact,  the  states,  which 
are  parties  thereto,  have  the  right,  and  are  in  duty  bound 
to  interpose,  for  arresting  the  progress  of  the  evil,  and  for 
maintaining,  within  their  respective  limits,  the  authorities, 
rights,  and  liberties  appertaining  to  them." 

In  addition  to  the  New  England  grievances  already  men- 
tioned, the  report  referred  to  "the  easy  admission  of  natural- 
ized foreigners  to  places  of  trust,  honor,  and  profit,"  and  to 
"the  admission  of  new  states  formed  at  pleasure  in  the  West- 
ern regions"  by  which  the  original  balance  of  the  sections  was 
destroyed.  Extreme  measures  were  not,  however,  to  be  taken, 
the  Union  was  not  to  be  broken  up,  if  the  following  changes 
in  the  Constitution,  which  it  recommended,  should  be  made. 
In  the  first  place  the  three-fifths  rule  regulating  the  representa- 
tion of  slaves  should  be  abolished;  in  the  second, no  new  state 
should  be  admitted  without  a  two- thirds  vote  of  both  Houses; 


X.]     SIXTY-ONE    YEARS  OF  CONSTITUTIONAL  GROWTH  315 

in  the  third,  embargoes  should  be  limited  to  sixty  days;  in  the 

fourth,  commercial  intercourse  should  only  be  prohibited  by  a 

two-  thirds  vote  of  both  Houses;  in  the  fifth,  such  a  vote  should 

be  required  to  declare  war  or  authorize  hostilities,  except  in 

case  of  invasion;  in  the  sixth,  naturalized  foreigners  should  be 

excluded  from  Congress  and  from  all  civil  offices  under  the 

Federal  Government;  in  the  seventh,  the  President  should  not 

be  reeligible,  and  should  not  be  taken  from  the  same  state  two 

terms  in  succession.   Before  the  arrival  of  the  commissioners  H°w  the  COQ-*' 

sent  by  the  legislatures  of  Massachusetts  and  Connecticut  to 


Washington  to  urge  the  proposed  amendments,  this  grave 
design  against  the  Union  was  annihilated  by  Jackson's  brilliant 
victory  at  New  Orleans  which  resulted  in  an  honorable  peace 
with  England.  As  an  eminent  historian  has  graphically 
expressed  it:  "The  commissioners  found  themselves  only  the 
discredited  agents  of  a  meeting  of  secret  conspirators  against 
the  unity  of  the  Republic,  and  of  states  that  had  deserted 
their  country  in  its  hour  of  sorest  need.  No  attention  was  paid 
to  their  recommendations,  nor  was  any  renewal  of  the  con- 
vention ever  attempted."  l 

Daniel  Webster,  in  the  course  of  his  great  debate  with  Hayne  Daniel 
upon  the  subject  of  nullification,  in  demonstrating  what  the 
South  Carolina  doctrine  would  have  accomplished  in  New 
England  if  it  had  been  acted  upon  by  the  Hartford  Conven- 
tion, said:  "Let  me  here  say,  sir,  that,  if  the  gentleman's 
doctrine  had  been  received  and  acted  upon  in  New  England 
in  the  times  of  the  embargo  and  non-intercourse,  we  should 
probably  not  now  have  been  here.  The  government  would, 
very  likely,  have  gone  to  pieces,  and  crumbled  into  dust.  No 
stronger  case  can  ever  arise  than  existed  under  these  laws  ;  no 
stages  can  ever  entertain  a  clearer  conviction  than  the  New 
England  States  then  entertained  ;  and  if  they  had  been  under 
the  influence  of  that  heresy  of  opinion,  as  I  must  call  it,  which 
the  honorable  member  espouses,  this  Union  would,  in  all 
probability,  have  been  scattered  to  the  four  winds.  I  ask  the 
gentleman,  therefore,  to  apply  his  principles  to  that  case;  I 
ask  him  to  come  forth  and  declare,  whether,  in  his  opinion, 
the  New  England  States  would  have  been  justified  in  interfer- 
ing to  break  up  the  embargo  system,  under  the  conscientious 
1  Johnston,  Am.  Polit.  Hist.,  1763-1876,  part  i,  p.  316.  See  also  p.  308  sq. 


316 


THE  AMERICAN  CONSTITUTION 


[CH. 


South 

Carolina  and 
nullification. 


Tariff  a  polit- 
ical issue 
after  1824. 


Calhoun. 


opinions  which  they  held  upon  it?  Had  they  a  right  to  annul 
the  law?"1 

The  same  warrior-statesman,  who  checked  in  1814  by  his 
triumph  in  the  field  a  provincial  and  selfish  movement  in  New 
England  down  the  path  toward  disunion,  checked  in  1832  just 
such  a  movement  when  South  Carolina  attempted  to  follow 
the  same  path  under  the  banner  of  nullification.  While  the 
South  did  not  oppose  the  protective  tariff  of  1816,  so  favorable 
to  the  sale  of  her  cotton,  she  did  oppose  as  time  went  on  any 
further  increase  of  duties  on  foreign  goods,  the  Southern  ele- 
ment in  Congress  defeating  in  1822  a  proposal  to  make  the 
tariff  more  protective.  The  tariff  of  1824,  more  advanced  in 
its  purpose  than  any  other  to  exclude  from  American  markets 
foreign  competing  goods,  was  passed  by  a  small  majority  of 
Northern  members  opposed  by  the  almost  unanimous  vote 
of  the  Southern,  who  claimed  that  it  was  not  only  unjust  and 
sectional  but  unconstitutional.  From  that  time  the  tariff  ques- 
tion became  political,  dividing  Whigs  from  Democrats  about 
equally;  and  also  sectional,  uniting  the  West,  Centre,  and  East 
against  the  solid  South,  except  Louisiana.  In  1824  Calhoun 
and  Jackson  voted  for  the  last  time  for  protection ;  and  in  that 
year  Webster  made  his  last  speech  for  free  trade.  The  tariff 
of  1828  marks  an  era  in  the  history  of  our  economic  legislation. 
From  that  time  dates  the  serious  division  between  the  North 
and  the  South,  out  of  which  emerged  the  doctrine  of  nulli- 
fication, defined  to  be  the  formal  suspension  by  a  state  of  the 
operation  of  a  federal  law  within  its  jurisdiction.  The  appli- 
cation of  that  doctrine  to  practical  politics  was  first  made  by 
John  C.  Calhoun,  then  the  ablest  and  most  influential  states- 
man of  the  South,  born  in  South  Carolina  in  1782,  of  Irish- 
Presbyterian  parentage.  Although  high-thoughted,  gifted,  and 
cultured,  his  mind  was  overmastered  by  "a  mass  of  subtle  and, 
so  to  speak,  scholastic  metaphysics  regarding  the  nature  of 
the  government  it  [the  Constitution]  created."  It  is  hardly 
conceivable  that  the  heresy  of  nullification  could  have  eman- 
ated from  a  mind  with  an  inborn  genius  for  law.  Such  a  mind 
was  that  of  Daniel  Webster,  who,  in  the  famous  debate  with 
Hayne,  —  the  spokesman  of  Calhoun,  then  President  of  the 
Senate, — in  the  winter  of  1829-30,  thus  restated  in  that  body 
1  Benton's  Thirty  Years1  View,  139. 


X.]      SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  317 

the  doctrine  in  question  as  he  understood  it:  "I  understand  Nullification 
the  honorable  gentleman  from  South  Carolina  to  maintain,  ^jjster*7 
that  it  is  a  right  of  the  state  legislature  to  interfere,  whenever, 
in  their  judgment,  this  government  transcends  its  constitu- 
tional limits,  and  to  arrest  the  operation  of  its  laws.  I  under- 
stand him  to  maintain  this  right,  as  a  right  existing  under  the 
Constitution ;  not  as  a  right  to  overthrow  it,  on  the  ground  of 
extreme  necessity,  such  as  would  justify  violent  revolution. 
I  understand  him  to  maintain  an  authority,  on  the  part  of 
the  states,  thus  to  interfere,  for  the  purpose  of  correcting  the 
exercise  of  power  by  the  general  government,  of  checking  it, 
and  of  compelling  it  to  conform  to  their  opinion  of  the  extent 
of  its  powers.  I  understand  him  to  maintain  that  the  ultimate 
power  of  judging  of  the  constitutional  extent  of  its  own  author- 
ity is  not  lodged  exclusively  in  the  general  government,  or  any 
branch  of  it ;  but  that  on  the  contrary,  the  states  may  lawfully 
decide  for  themselves,  and  each  state  for  itself,  whether,  in  a 
given  case,  the  act  of  the  general  government  transcends  its 
power.  I  understand  him  to  insist  that,  if  the  exigency  of  the 
case,  in  the  opinion  of  any  state  government,  require  it,  such 
state  government  may,  by  its  own  sovereign  authority,  annul 
an  act  of  the  general  government,  which  it  deems  plainly  and 
palpably  unconstitutional."  l 

When  Hayne  attempted  to  answer,  without  accepting  or  Hayne's  de- 
rejecting  Webster's  definition,  he  admitted  the  parentage  of  ^vir^nia 
nullification  by  resting  it  upon  the  third  resolve  of  the  Vir-  Resolutions, 
ginia  Resolutions  of  1798,  reaffirmed  in  1799.  Thus  out  of  the 
Pandora's  Box,  opened  by  Jefferson  in  the  Kentucky  and  Vir- 
ginia Resolutions,  came  first  the  Hartford  Convention,  and 
next  the  doctrine  of  nullification,  which  proposed  to  transfer 
the  final  arbitrating  power  from  the  federal  judiciary  to  any 
state  that  might  see  fit  to  constitute  itself  the  ultimate  judge. 
In  other  words,  the  doctrine  was  that  whenever  a  state  be- 
lieved that  its  agent,  the  Federal  Government,  had  unlawfully 
executed  a  power  delegated  to  it,  it  was  its  constitutional  right 
to  suspend  the  exercise  of  that  power,  even  after  it  had  crys- 
tallized into  a  statute,  until  such  time  as  the  power  in  question 
should  be  properly  exercised.   Such  seems  to  have  been  Cal- 
houn's  thought  —  deemed  by  Alexander  H.  Stephens  "too  statement. 
1  Benton's  Thirty  Years'  View,  138-139. 


318 


THE  AMERICAN  CONSTITUTION 


[CH. 


Banquet  of 


Caihoun. 


Benton's 
comment. 


subtle"  for  common  comprehension  —  when  in  February, 
1833,  he  said:  "It  is  a  gross  error  to  confound  the  exercise  of 
sovereign  power  with  sovereignty  itself  or  the  delegation  of  such 
powers  with  the  surrender  of  them.  A  sovereign  may  delegate 
his  powers  to  be  exercised  by  as  many  agents  as  he  may  think 
proper,  under  such  conditions  and  with  such  limitations  as  he 
may  impose;  but  to  surrender  any  portion  of  his  sovereignty 
to  another  is  to  annihilate  the  whole." 

The  metaphysical  brain-child  which  Hayne  had  sworn  to 
Jefferson  was  taken  to  a  great  feast  given  at  Washington 
April  13,  1830,  in  honor  of  his  birthday,  celebrated  by  a  com- 
pany at  whose  head  sat  the  President,  Andrew  Jackson,  and 
the  Vice-President,  John  C.  Caihoun.  These  gladiators,  who 
had  once  been  close  friends,  drew  their  swords  when,  at  the 
end  of  the  twenty-four  regular  toasts,  all  devised  in  the  in- 
terest of  nullification,  President  Jackson  offered  the  famous 
one,  "Our  Federal  Union;  it  must  be  preserved,"  —  to  which 
Caihoun  replied,  "The  Union,  next  to  our  liberty  the  most 
dear;  may  we  all  remember  that  it  can  only  be  preserved  by 
respecting  the  rights  of  the  states,  and  distributing  equally  the 
benefit  and  the  burden  of  the  Union."  l  The  issue  was  thus 
clearly  made  up  between  the  supremacy  of  the  Union  and  the 
supremacy  of  any  state  that  might  see  fit  to  challenge  its 
ultimate  authority.  Ben  ton,  who  was  present  at  the  dinner, 
speaks  thus  of  Caihoun 's  toast:  "This  toast  touched  all  the 
tender  parts  of  the  new  question  —  liberty  before  union  — 
only  to  be  preserved  —  state  rights  —  inequality  of  burdens 
and  benefits.  These  phrases,  connecting  themselves  with  Mr. 
Hayne's  speech,  and  with  proceedings  and  publications  in 
South  Carolina,  unveiled  Nullification  as  a  new  and  distinct 
doctrine  in  the  United  States,  with  Mr.  Caihoun  for  its  apostle, 
and  a  new  party  in  the  field  of  which  he  was  the  leader.  The 
proceedings  of  the  day  put  an  end  to  all  doubt  about  the 
justice  of  Mr.  Webster's  grand  peroration,  and  revealed  to  the 
public  mind  the  fact  of  an  actual  design  tending  to  dissolve 

1  Benton  says:  "  I  soon  discovered  givings,  began  to  spread  the  feeling, 

what  it  was  —  that  it  came  from  that  the  dinner  was  got  up  to  in- 

the    promulgation    of    twenty-four  augurate  that  doctrine,  and  to  make 

regular  toasts,  which  savored  of  the  Mr.   Jefferson  its  father."     Thirty 

new  doctrine  of  nullification;  and  Years'  View,  148. 
which,  acting  on  some  previous  mis- 


X.]     SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  319 

the  Union."  In  the  peroration  referred  to,  Webster  had  said  in 
replying  to  Hayne:  "When  my  eyes  shall  be  turned  to  behold, 
for  the  last  time,  the  sun  in  heaven,  may  I  not  see  him  shining 
on  the  broken  and  dishonored  fragments  of  our  once  glorious 
Union;  on  states  dissevered,  discordant,  belligerent;  on  a  land 
rent  with  civil  feuds,  or  drenched,  it  may  be,  in  fraternal 
blood."  Such  was  Webster's  prophetic  vision  of  the  Civil  War 
in  which  his  son  perished  in  defense  of  the  Union. 

Despite  the  fact  that  nullification  had  found  a  lion  in  its  Calhoun's  dis- 
path  in  the  person  of  Andrew  Jackson,  Calhoun  persisted,  j^^^ 
publishing  in  July,  1831,  in  a  South  Carolina  newspaper,  a 
dissertation  upon  it,  in  which,  after  justifying  its  expediency 
and  constitutionality,  he  contended  that  unless  Congress  at  its 
approaching  session  should  eliminate  the  protective  features 
of  the  tariff,  South  Carolina  should  force  the  issue  by  nullifying 
the  law  through  a  refusal  to  permit  the  collection  of  duties 
within  the  state.  Such  was  the  prelude  to  Clay's  tariff  bill 
which  became  law,  July  14,  1832,  not  to  take  effect,  however, 
until  March  3,  1833.  In  the  October  following  its  passage  the 
legislature  of  South  Carolina  was  convened  for  the  purpose  of 
calling  a  state  convention,  which  passed,  November  24,  an  Nullification 
ordinance  of  nullification,  declaring  the  tariff  acts  of  1828  and 
1832  to  be  null  and  void,  and  not  binding  on  the  state,  its  1832. 
citizens,  or  officers;  prohibiting  the  payment  of  duties  under 
either  act  within  the  state  after  February  I,  1833,  and  making 
any  appeal  to  the  Supreme  Court  of  the  United  States  as  to 
the  validity  of  the  ordinance  a  contempt  of  the  state  court 
from  which  the  appeal  was  taken.  As  the  ordinance  gave  warn- 
ing that  South  Carolina  would  proceed  forthwith  to  organize 
a  separate  government  if  the  federal  power  should  attempt  to 
use  the  army  or  navy  or  should  by  closing  the  ports  of  the 
state  obstruct  in  any  way  its  foreign  commerce,  the  President 
had,  on  November  6,  1832,  instructed  the  collector  at  Charles- 
ton to  provide  as  many  boats  and  inspectors  as  might  be 
necessary  to  seize  every  vessel  entering  the  port  and  keep  it 
in  custody  until  the  duties  should  be  paid,  —  "to  retain  and 
defend  the  custody  of  the  said  vessel  against  any  forcible 
attempt,"  and  to  refuse  to  obey  the  legal  process  of  state 
courts  designed  to  remove  the  vessel  from  his  custody.  After 
ordering  General  Scott  to  Charleston  to  support  the  collector, 


320 


THE  AMERICAN  CONSTITUTION 


[CH. 


Nullification 
Proclamation 
of  Dec.  ii. 


Act  of  March 
2,  1833. 


Compromise 
tariff  of  March 
2,  1833- 


and  sending  a  naval  force  to  the  harbors  of  the  state,  the 
President,  on  December  n,  issued  his  "Nullification  Proclam- 
ation," in  which  he  warned  the  people  of  South  Carolina  in 
these  clear  and  unmistakable  terms:  "The  dictates  of  a  high 
duty  oblige  me  solemnly  to  announce  that  you  cannot  succeed. 
The  laws  of  the  United  States  must  be  executed.  I  have  no 
discretionary  power  on  the  subject  —  my  duty  is  emphatically 
pronounced  in  the  Constitution.  Those  who  told  you  that  you 
might  peaceably  prevent  their  execution  deceived  you  —  they 
could  not  have  been  deceived  themselves.  Their  object  is 
disunion,  and  disunion  by  armed  force  is  treason.  Are  you 
ready  to  incur  its  guilt?  If  you  are,  on  your  unhappy  state 
will  fall  all  the  evils  of  the  conflict  you  force  upon  the  govern- 
ment of  your  country." 

After  that  matchless  utterance,  so  full  of  moral  dignity, 
Congress  strengthened  the  President's  hands  by  the  Act  of 
March  2,  1833,  empowering  him  to  alter  or  abolish  revenue 
districts,  to  remove  custom-houses,  and  to  use  the  land  and 
naval  forces  for  the  protection  of  the  revenue  officers  against 
attempts  to  recover  property  by  force.  Under  these  conditions 
the  federal  revenue  was  collected  as  usual  after  February  i, 
1833,  despite  the  anathemas  of  the  ordinance  of  nullification. 
A  private  "meeting  of  leading  nullifiers"  had  decided  at 
Charleston  in  January  that  the  enforcement  of  the  ordinance 
should  be  suspended  until  after  the  adjournment  of  Congress. 
Thus  it  appears  that  the  power  of  suspending  a  federal  statute 
had  first  been  assumed  by  a  state  convention;  and  then  its 
organic  act  was  suspended  by  a  meeting  of  private  citizens! 
Such  was  the  result  brought  about  through  the  indomitable 
courage  of  the  President  in  upholding  the  supremacy  of  the 
national  authority.  Jackson  was,  however,  thoroughly  in  favor 
of  a  revision  of  the  tariff  in  the  direction  claimed  by  the  nulli- 
fiers; and  the  result  was  the  Clay  compromise  tariff  bill,  whose 
signature  by  the  President  on  March  2,  1833,  was  followed  by 
the  repeal  of  the  ordinance  of  nullification  by  the  South  Caro- 
lina Convention,  on  March  16.  South  Carolina  thus  succeeded 
in  bringing  about  a  concession  that  secured  to  the  country  a 
progressively  less  protectionist  tariff  for  the  next  nine  years. 

The  doctrine  of  nullification,  put  forward  as  the  extremest 
possible  assertion  of  state  sovereignty,  should  not  be  confused 


X.]      SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  321 

with  the  doctrine  of  secession  subsequently  employed  as  a  The  doctrine 
weapon  for  the  defense  of  slavery.  While  both  doctrines  were  of  secession- 
drawn  from  a  common  source,  the  logical  processes  by  which 
they  were  defended  were  entirely  different.  Admitting  Cal- 
houn's  fundamental  concept  that  a  constitution  is  "a  com- 
pact" of  the  Hobbes-Rousseau  type,  his  deduction  that  while 
the  compact  was  still  undissolved  a  law  enacted  under  its 
authority  could  be  annulled  by  one  of  its  subscribing  members 
was  a  palpable  non-sequitur.  With  no  logical  consistency 
could  it  be  contended  that  a  state  could  remain  in  the  Union, 
enjoying  all  its  benefits,  and  at  the  same  time  nullify  its  laws 
at  pleasure.  So  palpable  was  that  difficulty  that  when  the 
tariff  of  1842  was  enacted  neither  Calhoun  nor  any  one  else  Nullification 
ever  suggested  a  revival  of  that  hopeless  expedient.  But  when  abandoned- 
the  time  came  to  put  forward  the  doctrine  of  secession  as  a 
means  of  dissolving  the  Union,  that  contention  assumed  a  more 
formidable  aspect.  If  the  premise  upon  which  that  doctrine 
rested  was  once  conceded,  the  conclusion  was  irresistible.  If 
it  was  true,  as  Calhoun  contended,  that  a  constitution  was 
merely  a  compact,  and  not  "an  instrument  of  perpetual 
efficacy,"  as  it  is  now  understood  to  be,  then  it  was  hard  to 
deny  that  it  was  not  dissolvable  at  pleasure.  The  entire  argu- 
ment in  favor  of  secession  depended  alone  upon  the  soundness 
of  the  premise  upon  which  Calhoun  rested  it. 

Within  the  last  fifty  or  sixty  years  the  Historical  School  of  A  constitution 
Jurisprudence  has  been  able  to  explain  to  all  students  of  gov- 
ernment  and  law  what  a  constitution  really  is.  The  conclusion  efficacy. 
that  it  is  "an  instrument  of  perpetual  efficacy"  and  not  a 
mere  "compact"  is  the  ripe  fruit  of  that  teaching.  The  now 
exploded  and  discredited  theory  of  the  contrat  social  popularized 
by  Rousseau  rested  upon  the  assumption  that  men  in  a  state 
of  nature  were  independent  and  isolated  individual  units  with 
the  power  to  enter  into  contracts  or  compacts  with  each  other. 
Out  of  such  a  condition  of  things  social  organization  was  sup- 
posed to  have  arisen.  The  Historical  School  has  demonstrated 
long  ago  that  at  the  beginning  of  social  organization  there  were 
no  independent  individual  units  capable  of  contracting  with 
each  other ;  on  the  contrary  the  individual  was  then  swallowed 
up  in  a  family  corporation  under  the  despotic  government  of 
a  patriarchal  chief,  who  was  at  once  general,  priest,  and  law- 


322 


THE  AMERICAN  CONSTITUTION 


[CH. 


Declaration  of 
the  Rights 
of  Man. 


Influence  of 
Kentucky 
and  Virginia 
Resolutions. 


giver.  At  the  outset  the  individual  as  such  did  not  exist  at  all.1 
The  historical  importance  of  Rousseau's  political  theory  of  the 
social  contract  is  embodied  in  the  fact  that  it  is  mainly  answer- 
able for  the  Declaration  of  the  Rights  of  Man,2  sound  in  many 
particulars,  which,  at  an  early  stage  of  the  French  Revolution, 
asserted  among  other  things  that  all  men  are  born  and  con- 
tinue free  and  equal  in  rights ;  that  society  is  an  association  of 
men  to  preserve  the  natural  rights  of  men;  that  the  law  can 
forbid  only  such  actions  as  are  mischievous  to  society;  that 
law  must  be  reasonable;  it  must  have  no  retroactive  force;  a 
society,  the  rights  of  which  are  not  assured,  the  powers  of  which 
are  not  definitely  distributed,  has  no  constitution. 

As  Jefferson  was  in  France  at  the  time  the  Federal  Conven- 
tion of  1787  was  in  session,  it  was  not  in  his  power  to  infuse 
into  its  proceedings  the  French  political  theories  with  which  he 
had  veneered  a  part  of  the  Declaration  of  Independence.  Not 
until  the  time  came  for  him  to  draft  the  Kentucky  and  Vir- 
ginia Resolutions  did  it  become  possible  for  him  to  pour  into 
the  stream  of  American  political  thought  the  ideas  he  had  de- 
rived from  Rousseau.  From  1798  down  to  the  beginning  of  the 
Civil  War  every  discontented  section  or  faction  that  desired 
to  revolt  against  the  national  authority  went  to  the  fountain 
thus  opened  for  arguments  to  justify  the  contention  that  those 
who  were  ill-used  within  the  Union  had  the  right  to  cancel 
the  "compact "  and  to  withdraw  from  it.  The  drafts  thus  made 
on  the  common  source  were  absolutely  non-sectional.  As  the 
pressure  of  the  national  authority  fell  first  upon  New  England, 
it  was  that  section  that  first  threatened  to  employ  what  was 
for  a  long  time  considered  as  an  obvious  method  of  redress.  It 
was  at  a  comparatively  late  day  that  the  South  was  tempted 
to  use  the  doctrine  of  secession  as  a  weapon  with  which  to 
defend  slavery.  So  long  as  there  was  a  chance  for  that  section 
to  preserve  the  ascendancy  of  the  slave  power  through  the 
admission  of  new  states,  its  ambition  was  to  remain  within 
the  Union  and  dominate  it.  Never,  until  that  battle  was  lost 
by  the  exhaustion  of  slave  territory  through  the  admission  of 
Florida  and  Texas  in  1845,  was  the  South  prompted  to  appeal 


1  Cf.  Maine,  Village  Communities, 
15  sq. 

2  For  the  full  text  of  that  docu- 


ment see  Henri  Martin's  Histoire  de 
la  France  depuis  1779,1,  78. 


X.]     SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH 


323 


to  the  right  of  secession  as  a  means  of  defending  its  special 
institution. 

It  is  said  that  the  doctrine  of  secession  was  first  defined  in 
print  in  a  series  of  articles  that  appeared  in  the  Connecticut 
"Courant"  soon  after  1795,  containing  a  declaration  of  "the 
impossibility  of  union  for  any  long  period  in  the  future," 
coupled  with  the  assurance  that  "there  can  be  no  safety  to  the 
Northern  States  without  a  separation  from  the  Confederacy," 
—  a  New  England  apprehension  quieted  by  the  election  of 
Adams  in  1796.  Five  months  before  the  Kentucky  Resolu- 
tions were  introduced,  Jefferson,  in  a  letter  to  John  Taylor  of 
Caroline,  dated  June  I,  1798,  after  tacitly  assuming  that  the 
right  of  secession  existed,  thus  expressed  himself  as  to  the 
expediency  of  its  exercise:  "If,  on  a  temporary  superiority  of 
one  party,  the  other  is  to  resort  to  a  scission  of  the  Union,  no 
federal  government  can  ever  exist.  If,  to  rid  ourselves  of  the 
present  rule  of  Massachusetts  and  Connecticut,  we  break  the 
Union,  will  the  evil  stop  there?  Suppose  the  New  England 
States  alone  cut  off,  will  our  natures  be  changed  ?  Are  we  not 
men  still  to  the  south  of  that,  with  all  the  passions  of  men?  .  .  . 
Seeing  that  we  must  have  somebody  to  quarrel  with,  I  had 
rather  keep  our  New  England  associates  for  that  purpose." 

From  that  quarter  came  a  very  decided  counterblast  when 
the  Federalists  of  New  England,  alarmed  by  the  victory  won 
by  the  South  in  the  acquisition  of  Louisiana,  began  to  see 
visions  of  six,  nine,  or  even  a  dozen  new  states  built  up  by  "the 
wild  men  on  the  Missouri."  Not,  however,  until  January,  181 1, 
when  the  enabling  act  for  the  admission  of  Louisiana  was  actu- 
ally before  the  House,  did  Quincy  of  Massachusetts  venture  to 
declare:  "It  is  my  deliberate  opinion,  that,  if  this  bill  passes, 
the  bonds  of  this  Union  are  virtually  dissolved ;  that  the  states 
which  compose  it  are  free  from  their  moral  obligations;  and 
that,  as  it  will  be  the  right  of  all,  so  it  will  be  the  duty  of  some, 
to  prepare  definitely  for  a  separation,  amicably  if  they  can, 
violently  if  they  must."  No  matter  whether  a  project  of  seces- 
sion was  actually  mooted  in  Massachusetts  in  1803  or  not, 
certain  it  is  that  the  movement  in  that  direction  at  a  little 
later  day  was  sufficiently  pronounced  to  prompt  Justice  Story 
to  write  on  January  9,  1809:  "  I  am  sorry  to  perceive  the  spirit 
of  disaffection  in  Massachusetts  increasing  to  so  high  a  degree ; 


Doctrine  of 

secession  first 
defined  about 
1795- 


Jefferson's 
view  of  it 
in  1798. 


Quincy's  out- 
cry in  1811. 


Story  and 
Henry  in  1809. 


324 


THE  AMERICAN  CONSTITUTION 


[Ci 


Hartford  Con- 
vention, 1814. 


Tucker's  Black- 
stone,  1803. 


Judge  Rawle, 
1825. 


and  I  fear  that  it  is  stimulated  by  a  desire,  in  a  few  ambitious 
men,  to  dissolve  the  Union."  John  Henry,  who  had  been  sent 
by  Craig,  governor  of  British  North  America,  to  report  upon 
the  state  of  affairs  and  political  feeling  in  the  New  England 
States,  reported  in  his  letter  of  March  7,  1809,  describing  the 
Federalist  programme,  that,  in  the  event  of  war,  "the  legis- 
lature of  Massachusetts  will  declare  itself  permanent  until  a 
new  election  of  members ;  invite  a  congress,  to  be  composed  of 
delegates  from  the  Federal  States;  and  erect  a  separate  gov- 
ernment for  their  common  defense  and  common  interest." 

The  Hartford  Convention,  as  we  are  informed  by  its  report, 
dealt  with  the  question  in  1814,  in  this  wise:  "If  the  Union 
be  destined  to  dissolution,  by  reason  of  the  multiplied  abuses 
of  bad  administrations,  it  should,  if  possible,  be  the  work  of 
peaceable  times  and  deliberate  consent.  Some  new  form  of 
Confederacy  should  be  substituted  among  those  states  which 
shall  intend  to  maintain  a  federal  relation  to  each  other.  But, 
a  severance  of  the  Union  by  one  or  more  states,  against  the 
will  of  the  rest,  especially  in  time  of  war,  can  be  justified  only 
by  absolute  necessity."  The  same  general  idea  had  been  ex- 
pressed by  Tucker  of  Virginia  in  his  edition  of  Blackstone  in 
1803,  in  which,  after  declaring  the  Federal  Government  to  be 
only  "the  organ  through  which  the  united  republics  commun- 
icated with  foreign  nations  and  with  each  other,"  he  said: 
"Each  is  still  a  perfect  state,  still  sovereign,  still  independent, 
and  still  capable,  should  the  occasion  require,  to  resume  the  ex- 
ercise of  its  functions,  as  such,  to  the  most  unlimited  extent. 
But,  until  the  time  shall  arrive  when  the  occasion  requires  a  re- 
sumption of  the  rights  of  sovereignty  by  the  several  states 
(and  far  be  that  period  removed  when  it  shall  happen),  the 
exercise  of  the  rights  of  sovereignty  by  the  states  individually 
is  wholly  suspended  or  discontinued,  in  the  cases  before  men- 
tioned; nor  can  that  suspension  ever  be  removed,  so  long  as 
the  present  Constitution  remains  unchanged,  but  by  the  dis- 
solution of  the  bonds  of  union."  In  1825  a  doctrinaire  from 
the  North,  Judge  Rawle,  of  Pennsylvania,  in  his  well-known 
"Commentaries  on  the  Constitution,"  said:  "The  secession  of 
a  state  from  the  Union  depends  on  the  will  of  the  people  of 
such  state.  .  .  .  The  state  legislatures  have  only  to  perform 
certain  organical  operations  in  respect  to  it.  To  withdraw  from 


X.]     SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  325 

the  Union  comes  not  within  the  general  scope  of  their  dele- 
gated authority.  But  in  any  manner  by  which  a  secession  is 
to  take  place,  nothing  is  more  certain  than  that  the  act  should 
be  deliberate,  clear,  and  unequivocal;  and  in  such  case  the 
previous  ligament  with  the  Union  would  be  legitimately  and 
fairly  destroyed." 

It  is  impossible  to  review  these  early  declarations  upon  the  Persistency  of 
subject  of  secession,  put  forth  before  the  existence  of  the  nation  ^constitution 
was  clearly  recognized,  without  perceiving,  first,  that  the  fact  isa"com- 
that  the  old  Confederacy  had  been  superseded  by  a  National  pact' 
Government  with  a  real  Constitution  acting  directly  on  the 
citizen  was  not  then  clearly  understood;  second,  that  the  fact 
that  a  national  constitution  is  not  a  "compact"  but  "an  in- 
strument of  perpetual  efficacy,"  construable  by  the  judicial 
power,  was  not  at  all  understood.  Now  that  the  conception 
of  a  constitution  as  "a  compact,"  born  of  the  politics  of  the 
French  Revolution,  has  passed  forever  away,  it  is  difficult  to 
realize  how  completely  it  dominated  a  very  large  class  of  our 
political  thinkers  for  nearly  seventy  years.  With  them  it  was 
a  living,  tangible  reality.  It  slowly  died  out,  as  thinking  men 
perceived  that  it  was  impracticable.  Jefferson,  who  never 
deceived  himself,  summed  up  that  aspect  of  the  matter  when 
he  said :  "  If  we  reduce  our  Union  to  Virginia  and  North  Caro- 
lina, they  will  end  by  breaking  into  their  simple  units."  As 
the  growth  of  the  national  life  advanced  through  the  power  of  Extinguished 
intercommunication,  the  possibility  of  its  dissolving  into  its  natSnaTlife 
original  units  became  more  and  more  abhorrent.  There  was 
but  one  counterforce  to  keep  the  old  idea  alive,  and  that  was 
the  necessity  for  its  use  as  a  weapon  with  which  to  defend 
slavery.  After  that  incentive  was  removed  by  the  destruc- 
tion of  slavery  in  the  Civil  War,  nothing  whatever  remained 
to  support  it.  After  it  had  thus  died  a  natural  death,  the 
Historical  School  completed  its  demonstration  that  the  whole 
social  contract  theory,  out  of  which  arose  the  idea  that  a 
constitution  is  a  "  compact,"  was  "one  of  the  most  successful 
and  fatal  of  political  impostures";  that  at  the  beginning  of 
society  men  were  in  a  condition  the  very  opposite  of  that  in 
which  Hobbes  and  Rousseau  assumed  them  to  be.  Antecedents  of 

And  yet  the  fact  remains  that  when  in  1847  Calhoun  took 
up  the  doctrine  of  secession  as  a  weapon  with  which  to  defend  in  1847. 


326 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Garrison's  use 
of  it  in  1845. 


L  Calhoun's 
move  for  co- 
operation in 
1847. 


slavery,  he  found  it  established  and  popularized  by  fifty  years 
of  preceding  American  history.  During  that  time  it  had  been 
used  as  a  menace  by  every  provincial  minority  discontented 
with  the  exercise  of  the  growing  national  authority.  Nowhere 
had  it  been  so  persistently  or  so  aggressively  used  as  in  New 
England,  where  its  popularity  had  not  diminished  down  to  that 
time.  Only  two  years  before,  in  1845,  William  Lloyd  Garrison, 
at  an  anti-annexation  convention  in  Boston,  had  demanded 
the  calling  of  a  Massachusetts  convention  to  declare  the  Union 
dissolved,  and  to  invite  other  states  to  join  with  her  in  a  new 
union  to  be  based  on  the  principles  of  the  Declaration  of  Inde- 
pendence. From  May's  "Anti-Slavery  Conflict"1  we  learn 
that  "although  his  motion  was  not  carried  by  the  convention 
it  was  received  with  great  favor  by  a  large  portion  of  the  mem- 
bers and  other  auditors,  and  he  sat  down  amidst  the  most 
hearty  bursts  of  applause." 

As  we  have  seen  already,  the  South's  first  grievance  against 
the  Union  grew  out  of  protective  tariffs,  which  her  statesmen 
denounced  as  legalized  robbery.  Against  that  grievance  South 
Carolina  made  an  unsuccessful  battle  alone,  under  the  banner 
of  nullification,  not  involving  the  question  of  slavery  at  all. 
Not  until  the  South  clearly  foresaw  that  she  was  to  lose  con- 
trol of  the  Federal  Government,  through  the  more  rapid 
growth  of  free  than  slave  states,  did  the  doctrine  of  secession 
really  become  a  part  of  her  policy.  The  last  slave  territory  was 
annexed  with  the  admission  of  Florida  and  Texas  in  1845,  and 
in  1847  Calhoun  made  his  move  for  "cooperation"  of  the  slave 
states  upon  a  certain  basis,2  which,  though  unsuccessful,  paved 
the  way  for  a  bolder  programme  in  1850,  which  proposed  the 
joint  secession  of  a  number  of  slave  states,  for  mutual  defense, 
in  the  event  that  any  prohibition  of  slavery  in  the  new  terri- 
tories should  be  insisted  upon.  While  at  that  time  the  Southern 
States  adhered  to  the  resolve  of  the  Georgia  State  Convention 
of  1850  to  accept  the  compromise  of  that  year,  they  were  prob- 
ably prepared  to  resist,  even  to  the  point  of  secession,  such 
anti-slavery  legislation  as  involved  the  abolition  of  slavery 

1  Page  320.    See  also  Johnston,  embargo  system  designed  to  detach 
American  Political  History,  1763-  from  the  Eastern  States  the  North- 
1876,  partii,  pp.  280-311.  west,  in  the  hope  that  that  section 

2  The   slave   states   were   to   be  would  unite  with  the  South  in  open- 
asked  to  cooperate  in  an  interstate  ing  the  new  territories  to  slavery. 


X.]     SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  327 

in  the  Territories,  or  in  the  District  of  Columbia,  or  of  the 
interstate  slave  trade.    But  long  before  that  point  had  been 
reached,  the  question  of  questions  —  is  the   Constitution  a 
''compact,"  dissolvable  at  pleasure  by  any  state  that  sees  fit 
to  withdraw  from  it? — had  been  thrashed  out  on  the  floor  of 
the  Senate  by  Webster  and  Calhoun.    With  the  lights  now 
before  us  it  is  hard  to  comprehend  how  the  latter  could  have 
ventured  to  assume  that  the  entirely  new  conception  of  a 
federal  government  embodied  in  the  unique  creation  of  1787, 
operating  directly  on  the  citizen,  had  really  wrought  no  change 
in  our  condition ;  that  after  its  adoption  the  Constitution  was 
still  nothing  more  than  the  loose  league  that  had  preceded  it. 
His  attitude  in  that  regard  has  thus  been  stated  by  a  very  His  view  of  the 
recent  biographer:    "The  generalizations  of  the  'Disquisition  Constitution. 
on  Government'  Calhoun  made  immediately  applicable  in 
his  'Discourse  on  the  Constitution  and  Government  of  the 
United  States.'    'Ours,'  it  says,  'is  a  democratic  federal  re- 
public,'—  democratic,  because  the  people  are  the  source  of 
all  power,  —  federal,  because  it  is  '  the  government  of  a  com- 
munity of  states,  and  not  the  government  of  a  single  state  or 
nation.'   Under  the  Constitution  the  states  should  be  as  free, 
independent,  and  sovereign,  as  they  were  under  the  Articles 
of  Confederation."1    Upon  that  assumption,  historically  as 
unsound  perhaps  as  any  one  that  could  have  been  devised, 
Calhoun  based  his  famous  nullification  resolutions  of  Janu-  His  resolutions 
ary  22,  1833,  in  which  he  contended  "that  the  people  of  the  of  January  22, 
several  states  composing  these  United  States  are  united  as  x  33' 
parties  to  a  constitutional  compact,  to  which  the  people  of  each 
state  acceded  as  a  separate  sovereign  community,  each  binding 
itself  by  its  own  particular  ratification ;  and  that  the  Union,  of 
which  the  said  compact  is  the  bond,  is  a  union  between  the 
states  ratifying  the  same;  .  .  .  that  whenever   the  general 
government  assumes  the  exercise  of  powers  not  delegated  by 
the  compact,  its  acts  are  unauthorized,  and  are  of  no  effect; 
and  that  the  same  government  is  not  made  the  final  judge  of 
the  powers  delegated  to  it,  since  that  would  make  its  discre- 
tion, and  not  the  Constitution,  the  measure  of  its  powers;  but 
that,  as  in  all  other  cases  of  compact  among  sovereign  parties, 
without  any  common  judge,  each  has  an  equal  right  to  judge 
1  Gaillard  Hunt's  Calhoun,  96. 


328 


THE  AMERICAN  CONSTITUTION 


[Cn. 


His  famous 
speech  of 
February  15. 


Webster's 
reply. 


Calhoun's  last 
speech,  March 
4,  1850. 


for  itself,  as  well  of  the  infraction  as  of  the  mode  and  measure 
of  redress."1  Here  we  have  in  all  its  baldness,  with  almost  an 
identity  of  language,  the  theory  of  a  constitution  as  a  dissolv- 
able compact,  entirely  beyond  the  arbitrating  power  of  the 
judiciary,  as  Jefferson,  who  had  taken  it  from  Rousseau  and 
his  school,  had  restated  it  in  the  Kentucky  and  Virginia  Reso- 
lutions of  1798.  Calhoun,  who  was  a  master  of  "scholastic 
metaphysics,"  and  far  more  of  a  political  dreamer  of  the  Rous- 
seau type  than  Jefferson,  entered  with  the  sincere  enthusiasm 
of  a  devotee  into  every  shadowy  subtlety  his  position  involved 
when,  on  February  15,  he  spoke  in  favor  of  his  resolutions.  In 
closing,  he  challenged  the  opponents  of  his  doctrines  to  dis- 
prove them,  warning  them,  in  his  concluding  sentence,  that 
the  principles  they  might  advance  would  be  subjected  to 
revision  by  posterity.  Long  ago  posterity  has  given  its  ap- 
proval to  the  opposing  theory  of  a  constitution  embodied  in 
the  crushing  reply  in  which  Webster  declared:  "i.  That  the 
Constitution  of  the  United  States  is  not  a  league,  confederacy, 
or  compact,  between  the  people  of  the  several  states  in  their 
sovereign  capacities;  but  a  government  proper,  founded  on 
the  adoption  of  the  people,  and  creating  direct  relations  be- 
tween itself  and  individuals.  2.  That  no  state  authority  has 
power  to  dissolve  these  relations;  that  nothing  can  dissolve 
them  but  revolution ;  and  that,  consequently,  there  can  be  no 
such  thing  as  secession  without  revolution.  3.  That  there  is 
a  supreme  law,  consisting  of  the  Constitution  of  the  United 
States,  and  acts  of  Congress  passed  in  pursuance  of  it,  and 
treaties;  and  that,  in  cases  not  capable  of  assuming  the  char- 
acter of  a  suit  in  law  or  equity,  Congress  must  judge  of,  and 
finally  interpret,  this  supreme  law  so  often  as  it  has  occasion 
to  pass  acts  of  legislation;  and  in  cases  capable  of  assuming, 
and  actually  assuming,  the  character  of  a  suit,  the  Supreme 
Court  of  the  United  States  is  the  final  interpreter. "!;  Each 
persevered  in  his  contention  to  the  end.  Calhoun  in  his  last 
speech  in  the  Senate,  March  4,  1850,  said:  "If  you  who  re- 
present the  stronger  portion,  cannot  agree  to  settle  the  great 
questions  at  issue  on  the  broad  principle  of  justice  and  duty, 
say  so;  and  let  the  states  we  both  represent  agree  to  separate 


1  See    Benton's 
View,  334. 


Thirty     Years' 


*  Webster's  Writings  and  Speeches, 
vi,  180-198. 


X.]     SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  329 

and  depart  in  peace.  If  you  are  unwilling  we  should  part  in 
peace,  tell  us  so,  and  we  shall  know  what  to  do."  Three  days 
later  Webster  exclaimed:  "Secession!  Peaceable  secession!  / 
Sir,  your  eyes  and  mine  are  never  destined  to  see  that  miracle. 
The  dismemberment  of  this  vast  country  without  convulsion ! 
The  breaking  up  of  the  fountains  of  the  great  deep  without 
ruffling  the  surface!  Peaceable  secession  is  an  utter  impos- 
sibility." Thus  was  made  up  the  issue  finally  submitted  to  the 
arbitrament  of  Civil  War. 

Clear  as  it  is  that  secession  as  a  means  of  dissolving  the  Tworevolu- 
Union  was  an  extra-constitutional  remedy,  absolutely  in- 
compatible  with  the  nature  of  "an  instrument  of  perpetual 
efficacy "  whose  interpretation  belongs  to  the  judicial  power, 
it  is  clearer  still  that  the  conduct  of  all  who  refused  to  abide  by 
the  judgment  of  the  Supreme  Court  in  the  Dred  Scott  case  was 
purely  revolutionary.  No  successful  assault  can  ever  be  made 
upon  Webster's  proposition  that  "in  cases  capable  of  assuming, 
and  actually  assuming,  the  character  of  a  suit,  the  Supreme 
Court  of  the  United  States  is  the  final  interpreter."  The  status 
of  a  slave  in  Illinois,  where  slavery  was  prohibited  by  statute, 
and  in  Wisconsin,  where  slavery  was  prohibited  by  the  Mis- 
souri Compromise,  was  an  ideal  question  for  solution  in  a  suit, 
and  in  that  form  it  was  presented  with  all  technical  accuracy 
in  the  case  of  Dred  Scott,  so  exhaustively  argued.  The  author-  Authority 
ity  of  every  court  of  last  resort  rests  necessarily  upon  the  °4t  resort  °^ 
fundamental  postulate  that  it  alone  is  the  judge  of  the  scope 
of  its  jurisdiction,  —  its  highest  duty  is  to  determine  what 
questions  are  before  it.  In  the  words  of  Marshall,  C.  J.,  in 
Cohens  v.  Virginia,1  "It  is  most  true  that  this  Court  will  not 
take  jurisdiction  if  it  should  not;  but  it  is  equally  true  that  it 
must  take  jurisdiction  if  it  should.  .  .  .  We  have  no  more 
right  to  decline  the  exercise  of  jurisdiction  which  is  given  than 
to  usurp  that  which  is  not  given.  The  one  or  the  other  would 
be  treason  to  the  Constitution."  It  is  not  likely  that  any 
jurist  familiar  with  the  practice  of  the  Supreme  Court  would 
have  seriously  contended,  in  times  free  from  political  excite-  its  exclusive 
ment,  that  the  constitutionality  of  the  Missouri  Compromise,  f1^  S?**?8 

its  jurisdiction. 

involving  the  entire  status  of  slavery  in  the  territories,  was  not 
squarely  before  that  Court  on  the  pleadings  in  the  Dred  Scott 

1  6  Wheat.  264. 


330 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Lincoln's 

declaration, 

1858. 


Seward's 

"  irrepressible 

conflict." 


Collision  of 

unlawful 

forces. 


case.  However  that  may  be,  the  Court  so  held,  and  that 
decision  was  conclusive  upon  all  persons  bound  to  respect 
the  Court's  authority. 

The  vital  fact  the  judgment  revealed  was  that  the  real  dif- 
ficulty was  imbedded  in  the  Constitution  itself,  whose  compro- 
mises upheld  property  in  a  slave  in  the  territories  as  a  matter 
of  positive  law.  When  the  political  leaders  of  the  North  were 
brought  face  to  face  with  that  result,  let  it  be  said  to  their 
honor  that  they  made  war  directly  upon  the  Constitution 
itself, — they  did  so  by  rejecting  the  exposition  of  the  positive 
law  as  made  by  the  Supreme  Court  within  the  scope  of  its 
authority.  Their  own  declarations  put  that  assertion  beyond 
all  controversy.  In  1858,  the  year  following  the  decision, 
Lincoln  said:  "This  government  cannot  endure  permanently 
half  slave  and  half  free.  I  do  not  expect  the  Union  to  be  dis- 
solved ;  I  do  not  expect  the  house  to  fall ;  but  I  do  expect  that  it 
will  cease  to  be  divided.  It  will  become  all  one  thing  or  the 
other.  Either  the  opponents  of  slavery  will  arrest  the  further 
spread  of  it,  and  place  it  where  the  public  mind  will  rest  in  the 
belief  that  it  is  in  the  course  of  ultimate  extinction;  or  its 
advocates  will  push  it  forward  till  it  shall  become  alike  lawful 
in  all  the  states,  old  as  well  as  new,  north  as  well  as  south." 
Whatever  doubt  remained  after  that  utterance  it  was  re- 
moved completely  by  Seward's  famous  "irrepressible  conflict" 
speech  made  at  Rochester  in  the  following  October,  in  which 
he  declared  that  the  conflict  in  which  the  country  was  then 
engaged  was  not  "accidental  or  unnecessary,  the  work  of 
interested  or  fanatical  agitators.  It  is  an  irrepressible  conflict 
between  opposing  and  enduring  forces,  and  it  means  that  the 
United  States  must  and  will,  sooner  or  later,  become  either 
entirely  a  slaveholding  nation,  or  entirely  a  free-labor  nation." 
Seward's  appeal  to  "the  higher  law"  was  a  declaration  that 
the  Constitution  of  the  United  States,  as  construed  by  the 
Supreme  Court,  was  no  longer  to  be  accepted  as  such.  The 
higher  law  to  which  he  referred  was  that  consensus  in  favor 
of  the  abolition  of  slavery  between  the  civilized  nations  which 
swept  the  institution  out  of  existence  in  this  country  through 
civil  war,  despite  the  express  guarantees  given  to  the  con- 
trary by  the  Constitution  of  the  United  States.  In  the  light 
of  these  facts  a  jurist  who  sits  in  the  "unvexed  silence  of  a 


X.]      SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  331 

student's  cell,"  undisturbed  by  passions  that  have  passed 
away,  should  not  now  have  the  slightest  difficulty  in  perceiv- 
ing that  the  revolt  of  those  who  refused  to  accept  the  judg- 
ment of  the  Supreme  Court  in  the  Dred  Scott  case  was  extra- 
constitutional,  revolutionary;  that  the  action  of  those  who 
answered  that  revolt  by  an  attempt  to  secede  from  the  Union 
was  extra-constitutional,  revolutionary.  The  collision  of  those 
two  irrepressible  and  unlawful  forces  precipitated  the  Civil 
War. 

Having  now  outlined  the  conflict  that  went  on  for  sixty-one  The  conflict 
years  in  the  political  arena  between  the  old  provincial  spirit  ^^ 
strengthened  by  slavery  and  the  new  national  spirit  strength- 
ened by  intercommunication,  a  brief  review  must  next  be 
made  of  the  same  conflict  as  it  appears  in  the  judicial  arena, 
with  the  courts  as  the  arbitrating  power.  Just  as  Jefferson  was 
the  dominating  mentality  that  directed  the  struggle  carried 
on  by  the  former  in  the  political  arena  from  1798  down  to  the 
Civil  War,  so  Marshall  was  the  dominating  mentality  that  Marshall  as 
directed  the  struggle  carried  on  by  the  latter  in  the  judicial 
arena,  from  1801  down  to  the  Civil  War.  Emphasis  has  been 
given  already  to  the  fact  that  a  written  constitution  as  a  com- 
plete system  of  limitations  upon  the  powers  of  a  state  to  invade 
the  "rights  of  man"  is  an  invention  that  arose  out  of  the  poli- 
tics of  the  French  Revolution ;  that  the  right  of  a  court  to  annul 
the  act  of  a  state,  when  in  its  judgment  the  limitations  thus 
imposed  have  been  exceeded,  is  purely  an  American  invention, 
specially  distinctive  of  our  system  of  jurisprudence.  That 
invention,  originating  in  the  state  constitutions,  was  lifted 
into  a  higher  sphere  upon  the  creation  of  the  Supreme  Court 
of  the  United  States,  the  first  in  history  to  claim  or  assert  the 
right  to  pass  upon  the  validity  of  a  national  law.  The  marvel 
is  that  neither  in  the  state  nor  federal  constitutions  was  this 
novel  and  far-reaching  right  bestowed  by  express  constitu- 
tional grant;  in  both  systems  it  emerged  as  a  rule  of  judge- 
made  law.  Not  until  thirteen  years  after  the  organization  of  Right  of  a  court 
the  Supreme  Court  was  the  first  attempt  made,  in  the  case  to  annul  a  law> 
of  Marbury  v.  Madison1  (1803),  to  put  the  stamp  of  nullity 
upon  a  national  law;  and  not  until  twenty  years  after  its 
organization  was  the  first  attempt  made,  in  the  case  of  Fletcher 
v.  Peck 2  (1810),  to  put  the  stamp  of  nullity  upon  a  state  law, 
1  I  Cranch,  138.  2  6  Cranch,  87. 


332 


THE  AMERICAN  CONSTITUTION 


[Ce. 


Jay's  despair- 
ing cry. 


Scope  of  Mar- 
shall's work. 


—  in  both  instances  by  reason  of  repugnancy  to  the  Federal 
Constitution.  During  the  first  eleven  years  of  its  existence  the 
latent  powers"of  the  Supreme  Court  were  in  eclipse.1  At  the 
end  of  that  time  it  was  that  Jay,  on  January  2,  1801,  after  his 
reappointment  as  Chief  Justice,  wrote  to  President  Adams: 
"I  left  the  bench  perfectly  convinced  that  under  a  system  so 
defective  it  would  not  obtain  the  energy,  weight,  and  dignity 
which  was  essential  to  its  affording  due  support  to  the  national 
government;  nor  acquire  the  public  confidence  and  respect 
which,  as  a  last  resort  of  the  justice  of  the  nation,  it  should 
possess.  Hence,  I  am  induced  to  doubt  both  the  propriety  and 
expediency  of  my  returning  to  the  bench  under  the  present 
system."  2 

That  despairing  cry  with  which  Jay  abandoned  our  federal 
judicial  system  as  impotent  was  a  bugle-call  to  John  Marshall, 
who,  on  February  4,  1801,  the  day  of  the  first  meeting  of  the 
Court  in  the  permanent  capital  of  the  nation,  took  his  place 
for  the  first  time  as  Chief  Justice,  and  as  such  sat  in  the  midst 
of  six  associates  for  thirty-four  years.  From  a  careful  estimate 
of  the  amount  of  work  done  by  the  Court  during  that  period, 
it  appears  that  of  eleven  hundred  and  six  opinions  filed, 
five  hundred  and  nineteen  were  delivered  by  Marshall,  the 
remainder  being  equally  divided  among  the  fifteen  who  were 
from  time  to  time  his  associates.  Of  the  sixty-two  decisions 
delivered  upon  constitutional  questions  from  1801  to  1835, 
thirty-six  were  by  Marshall,  who  filed  but  eight  dissenting 
opinions,  only  one  of  which  involved  a  question  of  con- 
stitutional law.  He  thus  became  not  only  the  dominating 
mind  of  the  Court,  but  its  mouth-piece  in  a  sense  in  which  no 
Chief  Justice  has  ever  been,  before  or  since.  At  the  moment  of 
his  accession  the  time  was  ripe  for  the  advent  of  a  jurist  and 
statesman  clear-visioned  enough  to  sweep  the  entire  horizon 
of  federal  power,  and  bold  enough  to  press  each  element  of  it 
to  its  logical  conclusion.  The  ultimate  success  of  his  lifework 
was  assured  by  the  manner  in  which  he  solved  the  problem  of 
problems  that  awaited  him.  In  Marbury  v.  Madison  (1803) 
the  Supreme  Court  announced  for  the  first  time  that  it  pos- 


1  For  the  history  of  that  period, 
see  Taylor,  Jur.  and  Pro.  of  the  Su- 
preme Court  of  the  U.  S.,  v-ix. 


8  Pellew's  Life  of  Jay,  339. 


X.]      SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  333 

sessed  the  right,  as  well  as  the  power,  to  declare  null  and  void 
an  Act  of  Congress  in  violation  of  the  Constitution.  The  in- 
vincible logic  employed  in  the  demonstration  rested  necessarily 
on  the  admission  that  the  august  right  in  question  was  a  mere 
deduction  from  the  general  nature  of  a  system  of  government 
whose  constitution  did  not  undertake  to  grant  it  in  express 
terms. 

The  prolonged  duel  at  a  later  time  between  Webster  and  Supremacy  of 
Calhoun  was  simply  a  continuation  of  the  conflict  that  began 
when  on  February  4,  1801,  Marshall  took  his  place  as  Chief 
Justice,  and  Jefferson,  on  March  4,  took  his  place  as  President 
of  the  United  States.  In  their  first  encounter,  which  occurred 
in  Marbury  v.  Madison,  Jefferson  was  discomfited,  because  the 
Chief  Justice,  after  holding  that  the  proceeding  against  the 
Secretary  of  State  must  be  dismissed  for  want  of  jurisdiction, 
coerced  the  President  into  delivering  the  commissions  to  the 
justices  of  the  peace,  whose  issue  he  had  countermanded,  by  a 
dictum  in  which  the  Court  really  had  no  right  to  indulge  at  all. 
In  the  next  year  the  Court  found  occasion  to  remind  the  execu- 
tive power  that  certain  of  its  acts  were  liable  to  be  annulled 
by  the  judicial,  when  in  Little  v.  Barreme l  (1804),  a  commander 
of  a  ship-of-war  was  held  answerable  to  an  injured  person, 
even  though  he  had  acted  under  the  instruction  of  the  Pre- 
sident, as  "instructions  not  warranted  by  law  cannot  legalize  a 
trespass."  In  1805,  in  the  case  of  the  United  States  v.  Fisher,2 
we  find  the  Court,  speaking  through  the  Chief  Justice,  sustain- 
ing federal  supremacy  in  cases  of  insolvency  or  bankruptcy. 
When  the  objection  was  made  that  such  priority  would  "in- 
terfere with  the  right  of  the  state  sovereignties  respecting  the 
dignity  of  debts,"  the  answer  was  that  "the  mischief  suggested, 
so  far  as  it  can  really  happen,  is  the  necessary  consequence  of 
the  supremacy  of  the  laws  of  the  United  States  on  all  subjects 
to  which  the  legislative  power  of  Congress  extends."  When  in 
1809  the  state  government  of  Pennsylvania  went  so  far  as  to  Pennsylvania 
order  out  the  state  militia  to  oppose  the  mandate  of  a  federal  coerc&1' 
court,  Marshall  was  equal  to  the  occasion.  Olmstead,  one  of 
the  captors  of  the  sloop  Active,  whose  rights  under  a  decree 
entered  by  the  Standing  Committee  of  Appeals  in  cases  of 
capture  had  been  for  a  long  time  set  at  naught  by  the  State  of 
1  2  Cranch,  770.  •  2  Cranch,  358. 


334  THE  AMERICAN  CONSTITUTION  [Cn. 

Pennsylvania,  now  filed  his  libel  in  the  District  Court  for  that 
state.  When  Judge  Peters  refused  to  grant  an  attachment, 
after  a  decree  in  his  favor,  an  application  for  a  mandamus  to 
be  directed  to  the  judge  was  made  to  the  Supreme  Court;  and 
in  granting  it  the  Chief  Justice  said:  "The  State  of  Penn- 
sylvania can  possess  no  constitutional  right  to  resist  the  legal 
process  which  may  be  directed  in  this  case.  It  will  be  readily 
conceived  that  the  order  which  this  Court  is  enjoined  to  make 
by  the  high  obligations  of  duty  and  of  law  is  not  made  without 
extreme  regret  at  the  necessity  which  has  induced  the  appli- 
cation. But  it  is  a  solemn  duty,  and  therefore  must  be  per- 
formed." 1  More  than  this,  the  general  of  the  state  militia  and 
some  of  his  men,  who  were  called  out  by  the  governor  to  resist 
the  service  of  the  attachment,  were  convicted  for  forcibly 
obstructing  federal  process. 

The  supremacy  of  federal  law  was  not,  however,  finally  estab- 

cphenst).  lished  until  the  more  decisive  judgment  rendered  in  Cohens  v. 
Virginia2  (1821),  in  which  the  Chief  Justice  said:  "They  main- 
tain that  the  Constitution  of  the  United  States  has  provided 
no  tribunal  for  the  final  construction  of  itself,  or  of  the  laws  or 
treaties  of  the  nation;  but  that  this  power  may  be  exercised 
in  the  last  resort  by  the  courts  of  every  state  in  the  Union. 
That  the  Constitution,  laws,  and  treaties  may  receive  as  many 
constructions  as  there  are  states,  and  that  this  is  not  a  mis- 
chief, or  if  a  mischief  j  is  irremediable."  After  putting  to  flight 
such  chimerical  contentions,  the  Court  at  a  little  later  day 
asserted  with  equal  force  that  within  the  circle  of  their  exclus- 
ive jurisdictions  the  state  courts,  when  construing  the  consti- 
tutions and  legislative  acts  of  their  respective  states,  are 
equally  supreme.3  When  the  original  jurisdiction  was  invoked 

Cherokee Na-  in  the  case  of  the  Cherokee  Nations.  Georgia4  (1831),  an  in- 
n  v.  Georgia.  junc^jon  was  asked  to  restrain  the  execution,  in  the  territory 
of  the  Cherokee  Nation,  of  certain  laws  of  that  state,  the  tribe 
claiming  that,  under  the  Constitution,  they  had  the  right  to 
proceed  as  a  foreign  state.  In  denying  that  contention  it  was 
said  that  the  Indian  tribes  residing  within  the  acknowledged 
boundaries  of  the  United  States  "may  more  correctly,  perhaps, 

1  United    States    v.    Peters,    5          8  Bank  of  Hamilton  v.  Dudley,  2 
Cranch,  115.  Pet.  492. 

8  6  Wheat.  265.  4  5  Peters,  I. 


X.]      SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  335 

be  denominated  domestic  dependent  nations."  In  Worcester  v. 
Georgia1  (1832),  a  law  of  that  state  was  held  to  be  unconsti-  Worcester 
tutional  and  void,  under  which  a  missionary  had  been  con-  *'  eorgia- 
victed  of  the  crime  of  preaching  to  the  Indians  and  residing 
among  them  without  license  from  the  governor.  The  State 
of  Georgia  met  that  decision  with  defiance,  the  governor  de- 
claring that  he  would  rather  hang  than  liberate  the  missionary 
under  the  mandate  of  the  Supreme  Court.  To  complicate  the 
situation,  President  Jackson  was  not  faithful  to  his  duty.  He 
is  reported  to  have  said:  "John  Marshall  has  made  the  de- 
cision, now  let  him  execute  it."  It  executed  itself.  At  the  end 
of  eighteen  months  the  contest  of  the  weaker  power  against 
the  national  power  had  grown  hopeless,  and  the  prisoner  was 
discharged. 

The  most  notable  products  of  Marshall's  unprecedented  PelatiahWeb- 
judicial  career  may  be  summed  up  under  two  heads.  In  the  Jhewa^for 
first  place,  he  established  the  supremacy  of  federal  law  within  Marshall. 
the  entire  circle  of  its  jurisdiction,  no  matter  whether  it  was 
opposed  by  the  Congress  or  by  a  state  legislature  in  the  form 
of  unconstitutional  enactments,  or  by  the  President  giving 
"instructions  not  warranted  by  law";  or  by  state  supreme 
courts  attempting  to  resist  the  mandates  of  the  Supreme  Court ; 
or  by  the  governors  of  states  attempting  to  resist  such  man- 
dates. And  here  it  is  hard  not  to  note  the  marvel  that  in  the 
first  draft  of  the  Constitution  made  by  the  great  architect, 
February  16,  1783,  he  anticipated  and  defined  the  entire  work 
of  Marshall  in  this  regard  in  four  propositions,  the  first  of 
which  is  that  "no  laws  of  any  state  whatever,  which  do  not 
carry  in  them  a  force  which  extends  to  their  effectual  and  final 
execution,  can  afford  a  certain  or  efficient  security  to  the  sub- 
ject: this  is  too  plain  to  need  any  proof." 2  To  that  he  added: 
"Further,  I  propose,  that  if  the  execution  of  any  act  or  order 
of  the  supreme  authority  shall  be  opposed  by  force  in  any  of 
the  states  (which  God  forbid) ,  it  shall  be  lawful  for  Congress 
to  send  into  such  state  a  sufficient  force  to  suppress  it." 

While  establishing  the  supremacy  of  federal  law,  Marshall  "The  nation" 
familiarized  the  people  of  this  country  with  the  fact  that  there  ^eric^n 
is  "the  nation,"  and  "the  American  Constitution."    In  the  Constitution." 

1  6  Peters,  515. 

a  McCulloch  v.  Maryland,  4  Wheat.  316. 


336 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Marshall's  de- 
finition abides. 


Dartmouth 
College  case 
limited  by 
Taney. 


second  place,  in  defining  the  character  of  "the  American  Con- 
stitution," a  favorite  phrase,  he  was  careful  to  explain  that  it 
was  something  entirely  different  from  the  loose  league  em- 
bodied in  the  Articles  of  Confederation.  In  a  great  case  he 
said:  "To  the  formation  of  a  league,  such  as  was  the  Confed- 
eration, the  state  sovereignties  were  certainly  competent.  But 
when  'in  order  to  form  a  more  perfect  Union,'  it  was  deemed 
necessary  to  change  this  alliance  into  an  effective  government, 
possessing  great  and  sovereign  powers,  and  acting  directly  on 
the  people,  the  necessity  of  referring  it  to  the  people,  and  of 
deriving  its  powers  directly  from  them,  was  felt  and  acknow- 
ledged by  all.  The  government  of  the  Union,  then  (whatever 
may  be  the  influence  of  this  fact  on  the  case),  is  emphatic- 
ally and  truly  a  government  of  the  people.  In  form  and 
in  substance  it  emanates  from  them."  1  Here  we  have  a  sol- 
emn declaration  that  the  American  Constitution  is  not  a 
mere  compact  between  states,  dissoluble  at  pleasure,  but  an 
instrument  of  perpetual  efficacy,  emanating  from  the  whole 
people,  and  construable  by  the  judicial  power,  capable  of  en- 
forcing its  mandates,  within  the  limits  of  its  jurisdictions, 
against  all  opposing  forces,  legislative  or  executive.  That 
conception  of  a  constitution  is  purely  an  American  creation ; 
it  has  no  prototype  in  history.  It  was  that  conception  which, 
in  the  complete  and  scientific  form  given  it  by  Marshall, 
crushed  and  drove  out  the  French  conception  of  a  constitu- 
tion as  "a  compact,"  without  the  judicial  power  as  a  factor 
in  its  construction,  embodied  by  Jefferson  in  the  Kentucky 
and  Virginia  Resolutions  of  1798.  The  conception  of  a  con- 
stitution as  defined  by  Marshall  and  elaborated  by  his 
disciple,  Daniel  Webster,  abides;  the  conception  of  a  consti- 
tution as  defined  by  Jefferson  and  elaborated  by  his  disciple, 
Calhoun,  has  passed  away. 

Roger  B.  Taney,  who  succeeded  Marshall,  served  as  Chief 
Justice  from  March  15,  1836,  to  October  12,  1864.  The  first 
opinion  delivered  by  him  on  a  constitutional  question  (Charles 
River  Bridge  v.  Warren  Bridge 2)  limited  the  far-reaching 
principle  announced  in  the  Dartmouth  College  case,  by  assert- 
ing the  broad  and  wholesome  doctrine  that  public  grants  are  to 

1  McCulloch  v.  Maryland,  4  Wheat.  316. 
8  1 1  Peters,  420. 


X.]       SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  337 

be  construed  strictly;  unless  there  is  an  express  grant  of  an 
exclusive  privilege,  an  implied  contract  to  that  effect  is  not  to 
be  inferred.  With  the  prescience  of  a  statesman  he  said:  "Let 
it  once  be  understood  that  such  charters  carry  with  them  these 
implied  contracts,  and  give  this  unknown  and  undefined  pro- 
perty in  a  line  of  travel,  and  you  will  soon  find  the  old  turnpike 
corporations  awakening  from  their  sleep,  and  calling  upon  this 
court  to  put  down  the  improvements  which  have  taken  their 
place. "  During  this  epoch  it  was  that  a  revolution  was  wrought 
in  the  commerce  of  the  country  through  a  transition  from  the 
primitive  and  ineffectual  means  of  transportation  by  pack- 
horse  and  wagon  to  the  new  methods,  resulting  from  the 
application  of  steam  to  locomotive  on  land  as  well  as  on 
water.  One  of  the  earliest  results  of  the  change  was  a  substi- 
tution for  the  ancient  English  rule  of  admiralty  and  maritime 
jurisdiction,  resting  on  the  ebb  and  flow  of  the  tide,  of  a  new 
one  better  adapted  to  totally  different  physical  conditions. 
In  the  case  of  the  Genesee  Chief  v.  Fitzhugh  l  (1851),  the 
Court  declared  in  no  uncertain  terms  that  the  admiralty  juris-  Admiralty 
diction  of  the  District  Court  extends  not  only  beyond  the  flow 
of  the  tide  in  all  navigable  waters,  but  even  over  the  great 
fresh-water  lakes.  The  Chief  Justice  said:  "These  lakes  are, 
in  truth,  inland  seas.  Different  states  border  on  them  on  one 
side,  and  a  foreign  nation  on  the  other.  A  great  and  growing 
commerce  is  carried  on  upon  them  between  different  states 
and  a  foreign  nation,  which  is  subject  to  all  the  accidents  and 
hazards  that  attend  commerce  on  the  ocean."  Thus  by  a 
stroke  of  the  judicial  pen  the  admiralty  jurisdiction  of  the 
federal  courts  was  extended  over  vast  areas  of  navigable  water 
from  which  it  had  been  excluded  for  sixty  years  by  the  ancient 
English  rule  fixing  the  ebb  and  flow  of  the  tide  instead  of  the 
navigable  character  of  the  water  as  the  test  of  jurisdiction. 

Six  years  later,  Taney  reached  the  crisis  of  his  career  when  Certain  ques- 
he  was  called  upon  to  preside  in  the  famous  Dred  Scott  case, 
in  which  was  witnessed  the  failure  of  the  attempt  to  settle 
by  the  judgment  of  a  court  of  the  highest  dignity  a  question, 
in  one  aspect  purely  judicial,  in  another  intensely  political. 
The  civilized  world  is  now  striving  to  establish  some  kind  of 
an  international  tribunal  which  will  be  able  to  diminish  if  not 
1  12  Howard,  443. 


338 


THE  AMERICAN  CONSTITUTION 


[CH. 


Attempted 
secession  of 
the  Southern 
States. 


A  perfect  de 
facto  govern- 
ment. 


Character 
of  contest 
defined  by 
Supreme 
Court. 


prevent  wars  by  being  armed  through  treaties  with  a  jurisdic- 
tion over  a  certain  class  of  delicate  political  questions  hereto- 
fore regarded  as  not  justiciable.  The  result  in  the  Dred  Scott 
case  does  not  stimulate  hope  as  to  such  experiments.  The 
world  has  yet  to  be  educated  up  to  the  idea  that  a  certain  class 
of  supreme  questions,  whether  national  or  international,  are 
justiciable. 

The  states  that  attempted  to  secede  proceeded  with  all  the 
technical  exactness  the  theories  of  Calhoun  prescribed.  The  or- 
dinance adopted  by  the  Convention  of  South  Carolina,  Decem- 
ber 20,  1860,  declared:  "We,  the  people  of  the  State  of  South 
Carolina,  in  convention  assembled,  do  declare  and  ordain,  and 
it  is  hereby  declared  and  ordained,  that  the  ordinance  adopted 
by  us  in  convention  on  the  23d  day  of  May,  in  the  year  of  our 
Lord  1788,  whereby  the  Constitution  of  the  United  States  was 
ratified,  and  also  all  acts  and  parts  of  acts  of  the  General  As- 
sembly of  this  state  ratifying  amendments  of  the  said  Consti- 
tution, are  hereby  repealed ;  and  that  the  Union  now  subsisting 
between  South  Carolina  and  other  states,  under  the  name  of 
the  United  States,  is  hereby  dissolved."  Similar  ordinances  were 
passed  by  conventions  in  Mississippi,  January  9, 1861 ;  Florida, 
January  10;  Alabama,  January  n;  Georgia,  January  19;  Louis- 
iana, January  26 ;  and  Texas,  February  I .  These  seven  were  the 
original  seceding  states;  afterward  joined  by  Arkansas,  May  6; 
North  Carolina,  May  20;  Virginia,  May  23;  and  Tennessee, 
June  1 8.  No  more  perfect  de  facto  government  was  ever  formed 
than  that  known  as  the  "  Confederate  States  of  America,"  whose 
constitution  was  a  reproduction,  with  minor  variations,  of  that 
of  the  United  States.  The  new  confederacy  occupied  a  large 
area  of  territory ;  it  maintained  great  armies  in  the  field ;  and  a 
small  but  terribly  efficient  navy.  The  Alabama,  which  wrought 
such  destruction,  was  a  ship-of-war  commanded  by  a  duly 
commissioned  admiral,  and  not  a  privateer.  It  was  therefore 
inevitable  that  the  Supreme  Court  of  the  United  States  should 
hold  that  such  a  gigantic  and  prolonged  contest  carried  on 
between  two  perfectly  organized  governments  was  not  a 
rebellion,  but  a  civil  war  in  the  highest  sense  of  that  term.  It 
was  so  held  in  the  Prize  Cases1  (1862),  in  which  Mr.  Justice 
Grier,  speaking  for  the  Court,  said:  " The  greatest  of  civil  wars 

1  2  Black,  635. 


X.]       SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  339 

was  not  gradually  developed  by  popular  commotion,  tumult- 
uous assemblies,  or  local  unorganized  insurrections.  However 
long  may  have  been  its  previous  conception,  it  nevertheless 
sprung  forth  suddenly  from  the  parent  brain,  a  Minerva  in 
the  full  panoply  of  war."  Was  there  a  war?  Could  there  be 
a  prize?  —  were  questions  which  necessarily  arose  out  of  Pre- 
sident Lincoln's  proclamations  of  April  19  and  27,  1861,  the 
blockade  of  the  Southern  ports,  and  the  capture  on  the  high 
seas  of  ships  carrying  contraband  goods,  or  of  ships  owned  by 
citizens  of  the  states  in  revolt.  It  was  directly  adjudicated 
that  the  President  possessed  the  right,  jure  belli,  to  institute 
a  blockade  of  the  ports  in  possession  of  the  states  in  revolt, 
which  neutrals  were  bound  to  respect.  Then,  after  referring 
to  the  neutrality  proclamations  issued  by  Great  Britain  and 
other  powers,  the  Court  further  said:  "After  such  an  official 
recognition  by  the  sovereign,  a  citizen  of  a  foreign  state  is 
estopped  to  deny  the  existence  of  the  war,  with  all  its  con- 
sequences as  to  neutrals."  When  Chief  Justice  Taney,  who 
was  so  indisposed  as  to  be  unable  to  sit  during  1863,  died  in 
October,  1864,  he  was  succeeded  by  Salmon  P.  Chase,  who  Chase 
was  commissioned  as  his  successor  December  6  of  that  year, 
after  an  absence  from  the  bar  of  fifteen  years.  He  arrived  in  1864. 
time  to  pass  upon  all  of  the  questions  of  international  law  or  of 
prize  growing  out  of  the  Civil  War.  In  the  first  opinion  deliv- 
ered by  him  (The  Circassian1),  the  rule  of  international  law 
was  announced  that  a  vessel  sailing  from  a  neutral  port  with 
intent  to  violate  a  blockade  is  prize  from  the  time  of  sailing, 
liable  to  capture  and  condemnation,  and  that  the  evidence 
of  intent  may  be  gathered,  not  only  from  letters  and  papers, 
but  from  the  words  and  acts  of  the  owners  or  hirers  of  the 
vessel,  the  shippers  of  the  cargo  and  their  agent,  and  especially 
from  spoliation  of  papers  on  the  eve  of  capture. 

But  all  such  performances  sink  into  insignificance  when  we 
contemplate  the  famous  judgment  in  which  the  character  of 
the  Constitution  was  authoritatively  defined  after  its  temper 
had  been  tested  in  the  fierce  crucible  of  Civil  War.  In  Texas  v.  Texas  »•  White, 
White2  the  vital  question  was  this:  By  the  ordinance  of  seces- 
sion, adopted  by  the  convention  and  ratified  by  a  majority 
of  the  citizens  of  Texas,  and  the  acts  of  its  legislature  intended 
1  2  Wallace,  135.  a  7  Wallace,  700. 


340  THE  AMERICAN  CONSTITUTION  [Cn. 

to  give  effect  to  that  ordinance,  did  that  state  cease  to  be  a 
state  in  the  Union?  Did  its  citizens  cease  to  be  citizens  of  the 
Union?  In  other  words,  is  the  Federal  Constitution  such  "an 
instrument  of  perpetual  efficacy,  emanating  from  the  whole 
people,"  as  to  be  indissoluble  by  any  state  even  when  it 
attempts  to  break  the  bond  by  the  act  of  a  constitutional  con- 
vention, ratified  by  a  majority  of  its  citizens?  The  Court, 
speaking  through  the  deathless  words  of  the  Chief  Justice, 
thus  answered:  "The  Union  of  the  states  never  was  a  purely 
artificial  and  arbitrary  relation.  It  began  among  the  colonies, 
and  grew  out  of  common  origin,  mutual  sympathies,  kindred 
principles,  similar  interests,  and  geographical  relations.  It 
was  confirmed  and  strengthened  by  the  necessities  of  war,  and 
received  definite  form  and  character  and  sanction  from  the 
An  indestmct-  Articles  of  Confederation.  By  these  the  Union  was  solemnly 
Declared  to  be  perpetual !  and  when  these  Articles  were  found 
to  be  inadequate  to  the  exigencies  of  the  country,  the  Constitu- 
tion was  ordained  'to  form  a  more  perfect  Union.'  It  is  diffi- 
cult to  convey  the  idea  of  indissoluble  union  more  clearly  than 
by  these  words.  What  can  be  indissoluble  if  a  perpetual  union 
made  more  perfect  is  not?  But  the  perpetuity  and  indissolu- 
bility  of  the  Union  by  no  means  implies  the  loss  of  distinct 
and  individual  existence,  or  of  the  right  of  self-government 
by  the  states.  .  .  .  The  Constitution,  in  all  its  provisions, 
looks  to  an  indestructible  union,  composed  of  indestructible 
states."  Thus  after  a  struggle  of  seventy-one  years  was  cast 
out  once  and  forever  from  our  constitutional  system  the  danger- 
ous and  entirely  illogical  heresy  embodied  in  the  Virginia 
Resolutions  of  1798,  which  declared  "that  in  case  of  deliberate, 
palpable,  and  dangerous  exercise  of  other  powers,  not  granted 
by  said  compact,  the  states,  which  are  parties  thereto,  have 
the  right,  and  are  in  duty  bound,  to  interpose,  for  arresting 
the  progress  of  the  evil,  and  for  maintaining,  within  their 
respective  limits,  the  authorities,  rights,  and  liberties  apper- 
taining to  them."  The  true  nature  of  "the  American  Constitu- 
tion"— defined  by  Chief  Justice  Marshall  to  be  "an  effective 
government,  possessing  great  and  sovereign  powers,  and  acting 
directly  on  the  people,  .  .  .  and  deriving  its  powers  directly 
from  them.  ...  In  form  and  in  substance  it  emanates  from 
them  "  —  was  frankly  and  fully  recognized  by  Chief  Justice 


X.]       SIXTY-ONE   YEARS  OF  CONSTITUTIONAL  GROWTH  341 

Chase,  who,  in  the  epoch-making  judgment  in  question,  re- 
stated Marshall's  conception  in  such  a  way  as  to  make  it  the 
irrevocable  basis  of  our  new  national  life.  That  basis  has  been  Basis  of  our 
accepted  by  the  nation  as  a  whole,  regardless  of  section  or  j^jnatlonal 
party,  —  not  because  it  is  the  ipse  dixit  of  a  court,  but  because 
it  is  inherently  sound  and  just.  And  yet  the  fact  remains  that 
this  dominating  conception  of  the  Constitution  is  the  outcome 
of  the  process  through  which  a  straggling  series  of  republics, 
fringing  our  Atlantic  seaboard  towards  the  close  of  the  eight- 
eenth century,  with  a  dim  sense  of  union,  have  been  rapidly 
transformed,  through  intercommunication,  into  a  nation.  It 
did  not  exist  at  the  outset.  And  so  this  long  chapter  must  end 
as  it  began  with  Savigny's  declaration  that  the  law  of  each 
country,  public  and  private,  must  be  regarded  "as  a  member 
of  its  body,  not  as  a  garment  merely,  which  has  been  made 
to  please  the  fancy,  and  can  be  taken  off  at  pleasure  and 
exchanged  for  another."  Law  is  the  natural  outcome  of  the 
consciousness  of  the  people,  like  their  social  habits  or  their 
language.  "We  find  in  language  a  constant  formation  and 
development,  and  in  the  same  way  in  law."  Or,  in  the 
words  of  Sir  James  Mackintosh,  "constitutions  are  not  made, 
they  grow." 


CHAPTER  XI 


THE  CIVIL  WAR  AMENDMENTS 


North  without 
a  programme. 


Civil  war  FROM  what  has  now  been  said  it  clearly  appears  that  the 

predpkated.  question  of  slavery  —  after  profoundly  agitating  and  divid- 
ing this  country  politically,  socially,  and  religiously,  for  more 
than  seventy  years  —  suddenly  precipitated  civil  war.  In 
the  graphic  language  of  the  Supreme  Court  of  the  United 
States,  "This  greatest  of  civil  wars  was  not  gradually  devel- 
oped. .  .  .  However  long  may  have  been  its  previous  con- 
ception, it  nevertheless  sprung  forth  suddenly  from  the  parent 
brain,  a  Minerva  in  the  full  panoply  of  war."1  It  is  not 
therefore  strange  that  a  gigantic  upheaval  so  suddenly  pre- 
cipitated should  have  found  the  North  entirely  unprepared 
with  a  programme,  prearranging  the  manner  in  which  its  armies 
in  the  field  should  deal  with  slavery  as  the  war  advanced,  the 
final  disposition  that  should  be  made  of  the  millions  of  freed- 
men  suddenly  transformed  from  chattels  into  persons,  and  the 
manner  in  which  the  seceding  states  should  be  restored  to  their 
normal  status  in  the  Union.  Tentatively,  and  bit  by  bit,  a 
policy  was  evolved  and  executed,  embracing  all  of  these  sub- 
jects, that  in  a  large  measure  followed  events  and  the  dominant 
currents  of  public  opinion  in  the  North  born  of  those  events. 
The  entire  movement  which  occupied  many  years  is  generally 
Reconstruction  described  by  the  term  Reconstruction,  which  embraces,  first, 
the  process  by  which  the  slaves  were  emancipated  and  then 
elevated  to  the  status  of  full  citizens;  second,  the  process  by 
which  the  seceding  states,  with  such  citizens  added  to  the 
corporate  person  of  each,  were  restored  to  their  normal  places 
in  the  Union.  With  that  large  section  of  our  political  history 
labeled  Reconstruction  no  attempt  will  be  made  to  deal  here.2 

1  Mr.  Justice  Grier  in  The  Prize      A.  Herbert,  who  as  jurist,  soldier, 
Cases,  2  Black,  635  (1862). 

2  I  refer  with  great  pleasure  to 
the  authoritative  work,  Reconstruc- 
tion  by   Eye-Witnesses  (1890),  the 
chief  contributor  to   which  is  my 
distinguished  friend,  the  Hon.  Hilary 


defined. 


member  of  Congress,  and  Secretary 
of  the  Navy,  has  made  a  record  that 
is  an  honor  at  once  to  the  South 
and  to  the  Nation.  He  was  one  of 
President  Cleveland's  most  trusted 
counselors. 


XL]  THE  CIVIL   WAR  AMENDMENTS  343 

Only  that  part  of  it  will  be  touched  which  falls  strictly  within 
the  domain  of  constitutional  history,  embracing  the  organic 
changes  wrought  by  the  Thirteenth,  Fourteenth,  and  Fifteenth 
Amendments.  As  these  three  amendments  all  relate  to  a  sin-  Unity  of  the 
gle  subject-matter,  which  they  disposed  of  progressively,  they 
should  be  regarded  as  a  single  event,  —  as  a  single  amendment 
to  the  Constitution.  If  they  may  be  thus  viewed,  then  the  Con- 
stitution has  been  amended,  in  the  manner  in  which  its  terms 
prescribe,  only  once  in  one  hundred  and  six  years,  and  then  as 
the  result  of  civil  war.  As  each  of  the  three  amendments  in 
question  disposed  of  a  distinct  phase  of  the  subject,  each  will 
be  considered  separately  in  the  order  of  its  ratification. 

The  history  of  the  Thirteenth  Amendment  really  begins  with  Thirteenth' 
this  declaration  made  by  Congress  in  July,i86i:  "That  this  Amendment 
war  is  not  prosecuted  on  our  part  in  any  spirit  of  oppression, 
nor  for  any  purpose  of  conquest  or  subjugation,  nor  for  the  pur- 
pose of  overthrowing  or  interfering  with  the  rights  or  estab- 
lished institutions  of  those  states,  but  to  defend  and  maintain 
the  supremacy  of  the  Constitution  and  all  laws  made  in 
pursuance  thereof,  and  to  preserve  the  Union  with  all  the 
dignity,  equality,  and  rights  of  the  several  states  unimpaired ; 
that  as  soon  as  these  subjects  are  accomplished,  the  war  ought 
to  cease."  In  harmony  with  that  declaration  the  President 
promptly  disavowed  the  act  of  General  Fremont,  in  Missouri, 
August  30,  1861,  and  that  of  General  Hunter,  in  South  Caro- 
lina, May  9,  1862,  when  they  issued  proclamations  attempting 
to  abolish  slavery.  But  a  marked  change  of  feeling  and  of 
policy  was  manifested  when  in  June  and  July  of  that  year  slavery  in 

slavery  in  the  territories  was  abolished  by  acts  that  also  freed  *S5ST  » 

,         e      .  .         -  r    11  i    abolished,  i86u 

the  captured,  deserted,  or  fugitive  slaves  or  all  owners  engaged 

in  the  Civil  War,  and  authorized  the  employment  of  negro  sol- 
diers. By  an  act  passed  August  6,  1861,  all  claim  of  the  mas- 
ter to  the  services  of  slaves  employed  in  arms  or  labor  against 
the  Government  had  been  forfeited ;  and  by  an  additional  arti- 
cle of  war  of  March  13,  1862,  the  army  was  prohibited  from 
returning  fugitive  slaves.  The  fugitive  slave  laws  were  not 
finally  abolished,  however,  until  June  28,  1864.  The  President's 
policy  of  emancipation  with  compensation  was  clearly  indi- 
cated in  his  special  message  of  March  6,  1862,  in  accordance 
with  which  the  joint  resolution  of  April  10  was  passed,  declar- 


344 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Slavery  in 
District  of 
Columbia, 
abolished, 
1862. 


Emancipation 

Proclamation, 

1863; 

its  legal  effect; 


exemptions 
from  its  oper- 
ation. 


Slavery  must 
be  supported 
by  local  police; 


ing  that  the  United  States  ought  to  cooperate  with  any  state 
willing  to  adopt  gradual  "abolishment,"  upon  the  basis  of  com- 
pensation. On  that  basis  was  passed  the  Act  of  April  16,  1862, 
abolishing  slavery  in  the  District  of  Columbia.  Not  until  after 
the  border  states  had  closed  their  ears  to  President  Lincoln's 
generous  advances  in  that  direction  did  he  yield  to  the  de- 
mand of  the  anti-slavery  forces  of  the  North  and  issue  his  pre- 
liminary proclamation  of  September  22,  of  the  year  last  named, 
which  was  followed  by  the  famous  Emancipation  Proclama- 
tion of  January  I,  1863. 

It  is  really  impossible  to  attribute  any  legal  effect  to  that 
proclamation,  even  as  an  exercise  of  the  despotic  war  power 
in  conquered  territory,  by  reason  of  the  peculiar  terms  in  which 
it  was  drawn.  Strangely  enough,  instead  of  providing  for  con- 
ditions within  the  conquered  areas  wherein  the  war  power 
was  in  actual  force,  it  undertook  to  free  slaves,  not  on  the 
soil  then  under  military  occupation,  but  on  that  not  then 
occupied,  therefore  beyond  the  jurisdiction  of  the  President 
as  "commander-in-chief."  The  portions  of  Louisiana  and  Vir- 
ginia actually  conquered  by  the  armies  of  the  United  States, 
and  subject  to  military  occupation  at  the  time,  were  expressly 
exempted  from  the  operation  of  the  proclamation.  When 
Douglas  was  attempting  at  Freeport  in  August,  1858,  the  im- 
possible task  of  reconciling  his  doctrine  of  popular  sovereignty 
with  loyal  support  of  the  judgment  in  the  Dred  Scott  case, 
Lincoln  asked  him  this  question :  "  Can  the  people  of  a  territory, 
in  any  lawful  way,  against  the  wish  of  any  citizen  of  the  United 
States,  exclude  slavery  from  its  limits  prior  to  the  formation  of 
a  state  constitution?  "  Douglas  developed  a  vitally  important 
point  when  he  answered:  "The  people  have  the  lawful  means 
to  introduce  it  or  exclude  it  as  they  please,  for  the  reason 
that  slavery  cannot  exist  a  day  or  an  hour  anywhere  unless 
it  is  supported  by  local  police  regulations."  Upon  that  ground 
Mansfield  released  Sommersett,  —  there  were  no  "local  police 
regulations"  in  England,  or  in  other  words  no  positive  law  by 
which  the  master's  possession  could  be  enforced.  The  Duke  of 
Wellington,  in  defining  the  nature  and  extent  of  the  authority 
of  a  military  occupant  and  his  duty  to  govern,  said:  "Martial 
law  is  neither  more  nor  less  than  the  will  of  the  general  who 
commands  the  army.  In  fact  martial  law  means  no  law  at  all ; 


XL]  THE  CIVIL   WAR  AMENDMENTS  345 

therefore  the  general  who  declares  martial  law,  and  commands 
that  it  shall  be  carried  into  execution,  is  bound  to  lay  down  dis- 
tinctly the  rules  and  regulations  and  limits  according  to  which 
his  will  is  carried  out.  Now,  I  have  in  another  country  carried 
out  martial  law ;  that  is  to  say,  I  have  governed  a  large  propor- 
tion of  a  country  by  my  own  will.  But  then,  what  did  I  do?  I 
declared  that  the  country  should  be  governed  according  to  its 
own  national  law;  and  I  carried  into  execution  that  my  so  de- 
clared will."1  Thus  it  is  clear  that  a  commander  in  military  Slavery 
occupation  can  either  continue  the  existence  of  slavery  by  up- 
holding  the  local  laws  by  which  it  is  sanctioned ;  or  he  can  abol-  ished  by  mil- 
ish  it,  for  the  time  being,  by  the  suspension  of  those  laws.  In  itary  ^^P^ 
either  event  his  power  to  deal  with  the  subject-matter  is  neces- 
sarily limited  to  the  district  in  which  he  has  actual  military  au- 
thority, and  to  the  time  during  which  such  authority  continues. 
The  moment  the  peculiar  status  established  by  the  military 
occupation  ends,  all  the  incidents  growing  out  of  it  end  with  it. 
Thus  no  instant  operation  can  be  attributed  to  the  proclama- 
tion in  question,  even  as  a  war  measure,  as  to  those  portions  of 
the  Southern  States  not  in  the  actual  military  occupation  of  the 
Union  forces  on  January  I,  1863.  As  to  the  parts  of  Virginia 
and  Louisiana  actually  conquered,  it  declared  that  they  were, 
"for  the  present,  left  precisely  as  if  this  proclamation  were  not 
issued";  as  to  the  parts  unconquered  it  declared  "that  all  per- 
sons held  as  slaves  within  the  said  states  and  parts  of  states  are 
and  henceforth  shall  be  free;  and  that  the  Executive  Govern- 
ment of  the  United  States,  including  the  military  and  naval 
authorities  thereof,  will  recognize  and  maintain  the  freedom 
of  said  persons."  It  may  be  that  that  part  of  the  proclamation 
went  into  effect,  as  a  war  measure,  progressively  as  the  desig- 
nated parts  were  conquered,  and  thus  subjected  to  actual  mili- 
tary occupation.  But  even  then  it  is  impossible  that  slavery 
could  have  been  thus  abolished  by  the  proclamation  in  any 
constitutional  sense.  Congress  and  the  President  were  equally 
impotent  to  overturn  the  compromises  of  the  Constitution  up- 
holding the  institution  of  slavery  as  their  effect  had  been  de-  never  abol. 
fined  by  the  Supreme  Court  in  the  Dred  Scott  case.  Therefore  ished  until 
it  is  certain  that  slavery  was  never  abolished,  in  a  constitutional  Thirteenth  Ol 
sense,  until  the  ratification  on  December  18,  1865,  of  the  Thir-  Amendment. 
1  Hansard,  3d  series,  cxv,  88 1;  Taylor,  Int.  Pub.  Law,  596  sq. 


346 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Liberation 
of  master 
and  slave. 


Mason's 
declaration. 


teenth  Amendment  declaring  that  "neither  slavery  nor  invol- 
untary servitude,  except  as  a  punishment  for  crime  whereof 
the  party  shall  have  been  duly  convicted,  shall  exist  within  the 
United  States,  or  any  place  subject  to  their  jurisdiction." 
That  view  is  confirmed  by  the  judgment  of  the  Supreme  Court 
in  Osborn  v.  Nicholson,1  in  which  it  was  held  that  the  consti- 
tution of  Arkansas  of  1868,  which  annuls  all  contracts  for  the 
purchase  or  sale  of  slaves,  and  declares  that  no  court  of 
the  state  should  take  cognizance  of  any  suit  founded  on  such 
a  contract,  is  invalid  as  to  all  prior  transactions ;  that  it  is  no 
defense  to  an  action  for  the  price  of  a  slave,  sold  when  slavery 
existed,  that  the  seller  warranted  him  to  be  a  slave  for  life, 
and  that  such  warranty  was  broken  by  the  subsequent  consti- 
tutional abolishment  of  slavery.  And  to  the  same  effect  is 
White  v.  Hart.2  In  the  Civil  Rights  cases,3  it  was  held  that 
the  Thirteenth  Amendment  relates  only  to  slavery  and  invol- 
untary servitude,  which  it  abolishes ;  and  in  Plessy  v.  Fergu- 
son,4 it  was  held  that  the  amendment  in  question,  abolish- 
ing slavery  and  involuntary  servitude,  was  not  violated  by 
a  state  statute  requiring  separate  accommodations  for  white 
and  colored  persons  on  railroads. 

No  act  of  legislation  in  the  world's  history  has  been  accepted 
and  approved  with  more  unanimity  by  all  classes  and  condi- 
tions of  men  affected  by  it  than  that  by  which  slavery  was  abol- 
ished in  the  United  States.  The  reason  for  that  unanimity  is  to 
be  found  in  the  fact  that  the  constitutional  act  of  abolition 
liberated  at  the  same  moment  the  master  and  the  slave.  By 
the  Thirteenth  Amendment  the  white  people  of  the  South  were 
emancipated  from  a  deadly  institution.  In  the  light  of  sub- 
sequent events  they  now  realize  that,  entirely  apart  from  its 
other  drawbacks,  slavery  was  the  greatest  of  all  obstacles  in 
the  path  of  their  economic  development.  With  a  territory  teem- 
ing with  mineral  wealth,  and  with  a  climate  peculiarly  suited 
to  manufactures,  the  South  was  for  seventy  years  chained  by 
the  institution  of  slavery  to  agriculture  alone.  In  the  Federal 
Convention  of  1787  George  Mason  of  Virginia  said:  "Slavery 
discourages  arts  and  manufactures.  The  poor  despise  labor 
when  performed  by  slaves.  They  prevent  the  emigration  of 


1  13  Wall.  654. 

2  13  Wall.  646. 


«  109  U.  S.  3. 
«  163  U.  S.  537. 


XL]  THE  CIVIL  WAR  AMENDMENTS  347 

whites  who  really  enrich  and  strengthen  a  country."  l  Slave 
labor  in  the  South,  absorbed  as  it  was  in  the  rude  work  required 
for  the  production  of  cotton,  tobacco,  and  sugar,  was  incapable 
of  advance  or  development,  while  its  presence  excluded  the 
influx  of  laborers  who  were.  The  results  of  the  economic  revo- 
lution wrought  in  the  South  by  the  abolition  of  slavery  may  be 
very  briefly  and  vividly  summed  up.  When  the  entire  output  of  Smith's 
the  South 's  productions  for  1860  are  arranged  in  two  columns, 
that  embracing  farm  products,  with  cotton  included,  represents 
practically  everything,  while  that  embracing  the  products  of 
manufactures  and  mining  represents  practically  nothing.  To- 
day the  mining  and  manufacturing  products  of  the  South 
exceed  her  entire  agricultural  output,  including  cotton.  Of  that 
great  staple  she  is  producing  vastly  more  than  in  1860,  with  the 
aid  of  her  negro  population  in  which  not  one  penny  of  capital  is 
invested.  In  the  days  of  slavery  the  South  deluded  herself  with 
the  fancy  that  she  was  rich  because  of  the  hundreds  of  millions 
invested  in  the  flesh  and  blood  of  her  peasantry.  The  fallacy  of 
that  economic  illusion  is  now  apparent  when  with  her  capital 
invested  in  other  and  normal  directions  her  peasantry  is  more 
productive  as  free  men. 

The  general  abolition  of  slavery,  universal  in  the  ancient  A  legal  person 
world,  represented  one  of  the  occasional  breaks  in  the  continu-  as  j^P086*1  to 
ity  of  the  history  of  law,  the  effect  of  which  has  been  to  clear 
the  conception  of  a  legal  person  as  opposed  to  a  thing  from  all 
the  ambiguities  attaching  to  that  conception  so  long  as  human 
beings  were  treated  to  a  greater  or  less  extent  as  if  they  were 
chattels.  In  early  law  the  right  of  a  master  over  his  slaves  was 
of  precisely  the  same  extent  and  character  as  that  which  he  had 
over  his  cattle,  except  that  the  slave  was  capable  of  manumis- 
sion.2 In  Roman  law  the  manumitted  were  called  freedmen, 
who  were  subject  to  political  disabilities,  and  to  some  duties 
arising  from  the  peculiar  laws  of  patronage.  In  the  history  of 
that  system  a  large  chapter  is  occupied  by  the  disabilities 
of  "libertini"  and  their  duty  toward  their  "  patroni." 3  By  the 

1  Gouverneur  Morris  said:  "It  is  ance  of  slavery." 

the  curse  of  Heaven  on  the  States  2  Cf .  Taylor,  The  Science  of  Juris- 

where  it  prevailed.    Travel  through  prudence,  559. 

the  whole  continent  and]  you  behold  *  The  improved  position  in  Jus- 

the    prospect    continually    varying  tinian   law   is    manifested    by    the 

with  the  appearance  and  disappear-  declaration  that   "slavery  is  con- 


348 


THE  AMERICAN  CONSTITUTION 


[CH. 


Fourteenth 
Amendment. 


An  Achaian 
citizen. 


Articles  of 
Confederation. 


Thirteenth  Amendment  slaves  as  chattels  were  converted 
into  freedmen  (libertini) ;  and  then,  without  any  intermediate 
probation,  they  were  lifted  to  the  status  of  full  citizens  in  the 
American  sense  of  that  term,  which  carries  with  it  the  enjoy- 
ment of  political  rights. 

The  Constitution  of  the  United  States  never  reached  its 
logical  completion  until  after  the  adoption  of  the  Fourteenth 
Amendment.  As  heretofore  pointed  out,  the  essence  of  the  in- 
vention of  Pelatiah  Webster,  which  became  the  cornerstone  of 
the  existing  Constitution,  and  which  imparted  to  it  its  distinct- 
ive character,  was  embodied  in  the  fact  that  its  powers  oper- 
ate not  upon  states  in  their  corporate  capacity  but  directly  on 
individuals  as  such.  If  that  basic  principle  had  been  from  the 
outset  carried  to  its  logical  conclusion,  it  would  have  been 
settled  from  the  beginning  that  the  individuals  upon  whom  the 
new  and  unique  federal  system  acts  are  primarily  its  own  citi- 
zens. Even  in  such  a  federal  system  as  the  Achaian  League, 
"every  Achaian  citizen  stood  in  a  direct  relation  to  the  federal 
authority,  and  was  in  full  strictness  a  citizen  of  the  league 
itself,  and  not  merely  of  one  of  the  cities  which  composed  it."  * 
And  yet  at  the  time  of  the  adoption  of  the  present  Constitution 
the  sense  of  nationality  had  not  sufficiently  developed  to  per- 
mit the  statement  of  the  ultimate  and  inevitable  conclusion, 
that  every  citizen  of  the  Union  is  primarily  a  citizen  of  the 
United  States,  and  not  merely  of  one  of  the  states  which  com- 
pose them.  The  one  particular  in  which  our  first  Federal  Con- 
stitution rose  above  the  older  Teutonic  leagues,  after  which  it 
was  patterned,  was  embodied  in  the  new  principle  of  interstate 
citizenship  it  originated.  That  principle  infused  itself  neither 
into  the  constitution  of  the  old  German  Empire,  nor  of  Switz- 
erland, nor  of  Holland.2  Section  i  of  Article  iv  of  the  Arti- 
cles of  Confederation  provided  that  "the  better  to  secure  and 
perpetuate  mutual  friendship  and  intercourse  among  the 
people  of  different  states  in  this  Union,  the  free  inhabitants  of 
each  of  these  states,  paupers,  vagabonds,  and  fugitives  from 

of  Aristotle,  In- 


trary  to  the  law  of  nature;  as  accord- 
ing to  natural  law,  all  men  were  from 
the  first  born  free."  Just.  1.2.2.  The 
doctrine  that  slavery  is  against 
nature,  was  older  than  Aristotle, 
who  does  not  accept  it.  See  W.  L. 


Newman's  Politics 
trod.,  141. 

1  Freeman,  Federal  Government,  i, 
259. 

2  Bancroft,  History  of  the  Constitu- 
tion^ i,  1 1 8. 


XL]  THE  CIVIL   WAR  AMENDMENTS  349 

justice  excepted,  shall  be  entitled  to  all  privileges  and  immuni- 
ties of  free  citizens  in  the  several  states."  The  substance  of  that 
provision  was  reproduced  in  Section  2  of  Article  iv  of  the 
present  Constitution,  which  provides  that  "  the  citizens  of  each 
state  shall  be  entitled  to  all  privileges  and  immunities  of  citi- 
zens in  the  several  states."   Beyond  that  point  the  framers  of 
the  more  perfect  union  were  not  prepared  to  go.  They  did  not 
attempt  to  do  more  than  establish  an  interstate  citizenship,  No  primary 
to  which  they  imparted  the  qualities  of  uniformity  and  equal-  C1V^ ^F^ur- 
ity  by  denying  to  every  state  the  right  to  discriminate  in  favor  teenth  Amend- 
of  its  own  citizens  as  against  those  of  any  other  state.   In  the  ment' 
absence  of  any  positive  assertion  by  federal  authority  of  any 
such  thing  as  a  primary  citizenship  of  the  United  States  as  such, 
there  was  really  no  substantial  basis  upon  which  to  maintain 
its  existence.  The  better  view  is  that  prior  to  the  adoption  of 
the  Fourteenth  Amendment  a  man  was  a  citizen  of  the  United 
States  only  by  virtue  of  his  citizenship  in  one  of  the  states  com- 
posing the  Union.   If  any  such  thing  as  a  federal  or  national 
citizenship  then  existed  at  all,  it  was  nothing  more  than  a  sec- 
ondary and  dependent  relation. 

In  the  case  of  Dred  Scott  a  grand  inquest  was  held  with  all  Inquest  in 
the  machinery  of  learning,  and  with  all  the  accessories  of  pro-  ^d  s 
longed  and  exhaustive  argument,  in  order  to  ascertain  whether 
or  no  such  a  thing  existed  as  citizenship  of  the  United  States, 
defined  as  such  by  its  Constitution  and  laws,  independent  of 
state  citizenship.  The  most  earnest  seeker  for  such  a  citizen- 
ship was  Mr.  Justice  Curtis,  who  was  in  the  highest  degree 
qualified  to  ascertain  it,  if  it  existed  at  all.   His  return  was  non 
est  inventus.   He  ascertained  that  there  was  no  such  thing,  at 
that  time,  as  a  citizenship  of  the  United  States,  as  a  substan- 
tive thing  independent  of  state  citizenship.   He  said:  "I  can  Justice  Cur- 
find  nothing  in  the  Constitution,  which,  proprio  vigor e,  deprives  tis's  view* 
of  their  citizenship  any  class  of  persons  who  were  citizens  of  the 
United  States  at  the  time  of  its  adoption,  or  who  should  be  na- 
tive-born citizens  of  any  state  after  its  adoption ;  nor  any  power 
enabling  Congress  to  disfranchise  persons  born  on  the  soil  of 
any  state,  and  entitled  to  citizenship  of  such  state  by  its  con- 
stitution and  laws.  And  my  opinion  is  that,  under  the  Con- 
stitution of  the  United  States,  every  free  person  born  on  the 
soil  of  a  state,  who  is  a  citizen  of  that  state  by  force  of  its  con- 


350 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Solecism  in 
original  Con- 
stitution. 


Section  i, 

Fourteenth 

Amendment. 


Slaughter- 
House  cases. 


stitution  or  laws,  is  also  a  citizen  of  the  United  States.  . .  .That 
the  Constitution  itself  has  denned  citizenship  of  the  United 
States  by  declaring  what  persons,  born  within  the  several 
states,  shall  or  shall  not  be  citizens  of  the  United  States,  will 
not  be  pretended.  It  contains  no  such  declaration/' l  He  per- 
suaded himself  that  Sandford's  plea  to  the  jurisdiction  was  bad, 
and  that  Scott  had  the  right  to  sue  because  "every  such  citi- 
zen, residing  in  any  state,  has  the  right  to  sue,  and  is  liable  to 
be  sued  in  the  federal  courts,  as  a  citizen  of  that  state  in  which 
he  resides."  And  so,  after  conceding  all  that  Mr.  Justice  Cur- 
tis claimed,  it  appears  that  such  citizenship  of  the  United  States 
as  Scott  was  supposed  to  possess  was  nothing  more  than  a  sec- 
ondary and  dependent  relation  resulting  from  his  state  citi- 
zenship. Such  was  the  solecism  existing  in  the  Constitution  at 
the  time  of  its  adoption.  While  it  created  the  first  federal 
government  that  ever  operated  directly  on  citizens,  the  fact 
remained  that  it  had  no  citizens  in  its  own  right.  To  fill  that 
vacuum  was  adopted  the  first  section  of  the  Fourteenth  Amend- 
ment, which,  without  making  any  direct  reference  to  the  ques- 
tion of  race  at  all,  contains  the  first  positive  definition  ever 
given  of  citizenship  of  the  United  States  as  a  primary  and  sub- 
stantive thing,  independent  of  state  citizenship.  It  provides 
that,  "All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  state  wherein  they  reside.  No  state 
shall  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States ;  nor  shall 
any  state  deprive  any  person  of  life,  liberty,  or  property,  with- 
out due  process  of  law;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws." 

The  sequel  of  the  Dred  Scott  case  is  to  be  found  in  the 
Slaughter-House  cases2  (1872),  in  which  another  grand  in- 
quest was  held  in  order  to  ascertain  the  nature  of  the  new  citi- 
zenship brought  into  existence  by  the  section  in  question.  The 
case  for  the  plaintiffs  in  error  was  presented  in  a  far-reaching 
argument  by  the  Honorable  John  A.  Campbell,  who  had  sat  as 
one  of  the  Justices  in  the  Dred  Scott  case.  The  Court,  speaking 
through  Mr.  Justice  Miller,  declared:  (i)  "The  first  section  of 

1  Dred  Scott  v.  Sandford,  19  Howard,  575. 
*  16  Wallace,  36. 


XL]  THE  CIVIL  WAR  AMENDMENTS  351 

the  Fourteenth  Article,  to  which  our  attention  is  more  specially 
invited,  opens  with  a  definition  of  citizenship  —  not  only  citi- 
zenship of  the  United  States,  but  citizenship  of  the  states.  No  Citizenship  not 
such  definition  was  previously  found  in  the  Constitution,  nor 
had  any  attempt  been  made  to  define  it  by  Act  of  Congress.  It 
had  been  the  occasion  of  much  discussion  in  the  courts,  by  the 
executive  departments  and  in  the  public  journals.  It  had  been 
said  by  eminent  judges  that  no  man  was  a  citizen  of  the  United 
States,  except  as  he  was  a  citizen  of  one  of  the  states  compos- 
ing the  Union.  Those,  therefore,  who  had  been  born  and  re- 
sided always  in  the  District  of  Columbia  or  in  the  territories, 
though  within  the  United  States,  were  not  citizens.  Whether 
this  proposition  was  sound  or  not,  had  never  been  judicially 
decided.  But  it  had  been  held  by  this  Court,  in  the  celebrated 
Dred  Scott  case,  only  a  few  years  before  the  outbreak  of  the 
Civil  War,  that  a  man  of  African  descent,  whether  a  slave  or 
not,  was  not  and  could  not  be  a  citizen  of  a  state  or  of  the 
United  States.  This  decision,  jvhile  it  met  with  the  con- 
demnation of  some  of  the  ablest  statesmen  and  constitutional 
lawyers  of  the  country,  had  never  been  overruled ;  and  if  it  was 
to  be  accepted  as  a  constitutional  limitation  of  the  right  of 
citizenship,  then  all  the  negro  race  who  had  recently  been  made 
freemen  were  still,  not  only  not  citizens,  but  were  incapable  of 
becoming  so  by  anything  short  of  an  amendment  to  the  Consti- 
tution"; (2)  "it  [Section  I  of  Article  xiv]  declares  that  persons 
may  be  citizens  of  the  United  States  without  regard  to  their 
citizenship  in  a  particular  state,  and  it  overturns  the  Dred  Scott  Dred  Scott 
decision  by  making  all  persons  born  within  the  United  States 
and  subject  to  its  jurisdiction  citizens  of  the  United  States. 
That  its  main  purpose  was  to  establish  the  citizenship  of  the 
negro  can  admit  of  no  doubt";  (3)  "the  distinction  between 
citizenship  of  the  United  States  and  citizenship  of  a  state 
is  clearly  recognized  and  established.  Not  only  may  a  man 
be  a  citizen  of  the  United  States  without  being  a  citizen  of 
a  state,  but  an  important  element  is  necessary  to  convert  the 
former  into  the  latter.  He  must  reside  within  the  state  to 
make  him  a  citizen  of  it,  but  it  is  only  necessary  that  he  should 
be  born  or  naturalized  in  the  United  States  to  be  a  citizen  of 
the  Union";  (4)  "there  is  a  citizenship  of  the  United  States 
and  a  citizenship  of  a  state,  which  are  distinct  from  each  other, 


352 


THE  AMERICAN  CONSTITUTION 


[CH. 


What  priv- 
ileges the 
nation  must 
protect. 


What  priv- 
ileges states 
must  protect. 


Certain  rights 
of  national 
citizenship. 


and  which  depend  upon  different  characteristics  or  circum- 
stances in  the  individual";  (5)  "privileges  and  immunities  of 
the  citizens  of  the  United  States  ...  are  placed  by  this  clause 
under  the  protection  of  the  Federal  Constitution,  and  that  the 
latter,  whatever  they  may  be,  are  not  intended  to  have  any 
additional  protection  by  this  paragraph  of  the  Amendment.  If 
then  there  is  a  difference  between  the  privileges  and  immun- 
ities belonging  to  a  citizen  of  the  United  States  as  such,  the 
latter  must  rest  for  their  security  and  protection  where  they 
have  heretofore  rested,  for  they  are  not  embraced  in  this 
paragraph  of  the  Amendment";  (6)  "having  shown  that  the 
privileges  and  immunities  relied  on  in  the  argument  are  those 
which  belong  to  citizens  of  the  states  as  such,  and  that  they 
are  left  to  the  state  governments  for  security  and  protection, 
and  not  by  this  article  placed  under  the  special  care  of  the  Fed- 
eral Government,  we  may  hold  ourselves  excused  from  defining 
the  privileges  and  immunities  of  citizens  of  the  United  States 
which  no  state  can  abridge,  until  some  case  involving  these 
privileges  and  immunities  may  make  it  necessary  to  do  so.  But 
lest  it  should  be  said  that  no  such  privileges  and  immunities 
are  to  be  found  if  those  we  have  been  considering  are  ex- 
cluded, we  venture  to  suggest  some  which  owe  their  existence 
to  the  Federal  Government,  its  national  character,  its  Con- 
stitution, or  its  laws.  One  of  these  is  well  described  in  the 
case  of  Crandall  v.  Nevada,  6  Wall.  36.  It  is  said  to  be  the  right 
of  the  citizen  of  this  great  country,  protected  by  implied  guar- 
anties of  its  Constitution,  '  to  come  to  the  seat  of  government 
to  assert  any  claim  he  may  have  upon  that  government,  to 
transact  any  business  he  may  have  with  it,  to  seek  its  protec- 
tion, to  share  its  offices,  to  engage  in  administering  its  func- 
tions. He  has  the  right  to  free  access  to  its  seaports,  through 
which  all  operations  of  foreign  commerce  are  conducted,  to  the 
subtreasuries,  land  offices,  and  courts  of  justice  in  the  several 
states.  .  .  .  Another  privilege  of  a  citizen  of  the  United  States 
is  to  demand  the  care  and  protection  of  the  Federal  Govern- 
ment over  his  life,  liberty,  and  property  when  on  the  high  seas 
or  within  the  jurisdiction  of  a  foreign  government.  Of  this 
there  can  be  no  doubt,  nor  that  the  right  depends  upon  his  char- 
acter as  a  citizen  of  the  United  States.  The  right  to  peaceably 
assemble  and  petition  for  redress  of  grievances,  the  privileges 


XL]  THE  CIVIL   WAR  AMENDMENTS  353 


of  the  writ  of  habeas  corpus,  are  rights  of  the  citizen  guar- 

anteed  by  the  Federal  Constitution.  The  right  to  use  the 

navigable  waters  of  the  United  States,  however  they  may  pene- 

trate the  territory  of  the  several  states,  and  all  rights  secured 

to  our  citizens  by  treaties  with  foreign  nations,  are  dependent 

upon  citizenship  of  the  United  States,  and  not  citizenship  of 

the  state."   In  explaining  the  motives  that  prompted  the  con-  Motives 

version  of  the  freedmen,  made  such  by  the  Thirteenth  Amend-  ^uTteentli 

ment,  into  freemen,  made  such  by  the  Fourteenth,  the  Court  Amendment. 

said:  "Notwithstanding  the  formal  recognition  by  those  states 

of  the  abolition  of  slavery,  the  condition  of  the  slave  race  would, 

without  further  protection  of  the  Federal  Government,  be 

almost  as  bad  as  it  was  before.  Among  the  first  acts  of  legis- 

lation, adopted  by  several  of  the  states  in  the  legislative  bodies 

which  claimed  to  be  in  their  normal  relations  with  the  Federal 

Government,  were  laws  which  imposed  upon  the  colored  race 

onerous  disabilities  and  burdens,  and  curtailed  their  rights  in 

the  pursuit  of  life,  liberty,  and  property,  to  such  an  extent  that 

their  freedom  was  of  little  value,  while  they  had  lost  the  pro- 

tection which  they  had  received  from  their  former  owners  from 

motives  both  of  interest  and  humanity."  An  able  commenta-  Guthrie's  view. 

tor  on  the  Fourteenth  Amendment  has  said  that  it  "national- 

ized the  whole  sphere  of  civil  liberty.  .  .  .  Some  of  its  provis- 

ions were  already  embodied  in  most  of  the  state  constitutions 

and  bills  of  rights  ;  but  the  experience  of  the  Civil  War  and  of 

the  period  of  reconstruction  had  convinced  the  people  that 

fundamental  rights  could  no  longer  coexist  in  safety  with  un- 

restrained power  in  the  states  to  alter  their  constitutions  and 

laws  as  local  prejudice  or  interest  might  prompt  or  passion  im- 

pel. The  rights  of  the  individual  to  life,  liberty,  and  property 

had  to  be  secured  by  the  Federal  Constitution  itself,  as,  indeed, 

they  should  have  been  when  it  was  originally  framed.  The 

Amendment,  therefore,  placed  the  essential  rights  of  life,  lib- 

erty, and  property  in  the  several  states  of  the  Union  under  the 

ultimate  protection  of  the  National  Government."  l 

The  national  citizenship  thus  created  as  a  substantive  and  A  new 

independent  thing  was  placed  by  Section  I  under  the  protec- 

tion  of  a  new  Magna  Carta,  enforceable  by  the  federal  courts, 

the  first  portion  of  which  was  manufactured  out  of  ancient 

1  Guthrie,  The  Fourteenth  Amendment,  2. 


354  THE  AMERICAN  CONSTITUTION  [Cn. 

English  material,  while  the  second  is  purely  an  American  in- 
vention. Every  citizen  of  the  United  States  is  now  protected 
against  unlawful  state  interference  by  the  provision  that  "no 
state  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States;  nor 
(i)  shall  any  state  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law;  nor  (2)  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws."  The  last 
clause,  invented  at  the  time  the  Amendment  was  drawn,  has 
no  connection  with  English  constitutional  history.  Mr.  Justice 
justice  Miller's  Miller  took  entirely  too  narrow  a  view  of  that  clause  in  the 
Jfe^"1  Slaughter-House  cases  when  he  said:  "We  doubt  very  much 

whether  any  action  of  a  state  not  directed  by  way  of  discrimina- 
tion against  the  negroes  as  a  class,  or  on  account  of  their  race, 
will  ever  be  held  to  come  within  the  purview  of  this  provision." 
The  broader  views  expressed  by  Justices  Bradley  and  Swayne, 
on  behalf  of  themselves  and  Chief  Justice  Chase,  and  by 
Justice  Field  in  his  dissenting  opinion  have  prevailed.  The  far- 
sighted  jurists  since  called  upon  to  construe  Section  I  —  per- 
ceiving that  it  had  wrought  a  revolution,  that  it  had  shifted  the 
i  centre  of  gravity  of  the  Constitution  —  have  not  been  slow  to 
dissever  it  from  the  question  of  slavery  altogether.  As  no  such 
word  is  contained  in  it,  and  no  particular  class  or  condition  of 
persons  is  referred  to,  it  has  been  easy  to  extend  it  beyond  the 
protection  of  the  colored  race  by  making  it  a  general  rule  of 
conduct,  civil  and  political,  established  as  a  fixed  standard  of 
principles  governing  individual  rights  and  liberties  applicable 
at  all  times  and  to  all  conditions,  by  invoking  Chief  Justice 
Marshall's  rule.  Marshall's  rule  of  construction,  which  declares  that  "the  case, 
being  within  the  words  of  the  rule,  must  be  within  its  opera- 
tion likewise,  unless  there  be  something  in  the  literal  construc- 
tion so  obviously  absurd,  or  mischievous,  or  repugnant  to 
the  general  spirit  of  the  instrument,  as  to  justify  those  who 
expound  the  Constitution  in  making  it  an  exception."1  It  has 
been  expressly  held  that  "doubtless  the  intention  of  the  Con- 
gress which  framed  and  of  the  states  which  adopted  this  Amend- 
ment of  the  Constitution  must  be  sought  in  the  words  of  the 
Amendment;  and  the  debates  in  Congress  are  not  admissible 
as  evidence  to  control  the  meaning  of  those  words."  2 

1  Dartmouth  College  v.  Wood-  2  United    States   v.    Wong    Kim 

ward,  4  Wheat.  518,  644.  Ark,  169  U.  S.  649,  699. 


XI.]  THE  CIVIL  WAR  AMENDMENTS  355 

The  wise  and  legitimate  effort  thus  made  to  widen  the  new 
citizenship  beyond  the  circumstances  out  of  which  it  grew  was 
greatly  advanced  when  on  the  argument  of  the  San  Mateo  SanMateo 
County  case l  in  the  Supreme  Court,  December  19,  1882,  Mr.  County  case- 
Roscoe  Conkling,  a  leading  member  of  the  Reconstruction  Com- 
mittee that  framed  the  Amendment,  produced  for  the  first  time 
the  unpublished  journal  of  the  committee,  which  showed,  step 
by  step,  the  evolution  of  its  provisions.  That  it  was  the  pur- 
pose of  the  Committee  to  give  to  such  provisions  the  broadest 
scope  and  operation,  and  not  in  any  way  to  confine  their  bene- 
fit and  protection  to  the  colored  race,  was  made  plain  by  Mr. 
Conkling,  who,  in  the  course  of  his  argument,  said:  "At  the  Conkling's 
time  the  Fourteenth  Amendment  was  ratified,  as  the  records  staten 
of  the  two  Houses  will  show,  individuals  and  joint-stock  com- 
panies were  appealing  for  congressional  and  administrative 
protection  against  invidious  and  discriminating  state  and  local 
taxes.  One  instance  was  that  of  an  express  company,  whose 
stock  was  owned  largely  by  citizens  of  the  State  of  New  York, 
who  came  with  petitions  and  bills  seeking  Acts  of  Congress  to 
aid  them  in  resisting  what  they  deemed  oppressive  taxation  in 
two  states,  and  oppressive  and  ruinous  rules  of  damages  applied 
under  state  laws.  That  complaints  of  oppression  in  respect  of 
property  and  other  rights,  made  by  citizens  of  Northern  States 
who  took  up  residence  in  the  South,  were  rife,  in  and  out  of 
Congress,  none  of  us  can  forget;  that  complaints  of  oppres- 
sion in  various  forms,  of  white  men  in  the  South,  —  of  'Union 
men,'  —  were  heard  on  every  side,  I  need  not  remind  the  Court. 
The  war  and  its  results,  the  condition  of  the  freedmen,  and  the 
manifest  duty  owed  to  them,  no  doubt  brought  on  the  occa- 
sion for  constitutional  amendment;  but  when  the  occasion 
came,  and  men  set  themselves  to  the  task,  the  accumulated  evils 
falling  within  the  purview  of  the  work  were  the  surrounding 
circumstances,  in  the  light  of  which  they  strove  to  increase  and 
strengthen  the  safeguards  of  the  Constitution  and  laws." 

In  1883  Mr.  Justice  Field,  in  his  decision  in  the  Railroad  Tax  Justice  Field 
cases2  in  the  United  States  Circuit  Court  of  California,  said: 
"Oppression  of  the  person  and  spoliation  of  property  by  any 
state  were  thus  forbidden,  and  equality  before  the  law  was 

1  ii6U.S.  138. 

2  Santa  Clara  County  v.  Southern  Pac.  R.  Co.,  118  U.  S.  394. 


356 


THE  AMERICAN  CONSTITUTION 


[CH. 


Justice  Brown 
in  Plessy  v. 
Ferguson. 


Distinctions 
based  on  color. 


secured  to  all.  .  .  .  With  the  adoption  of  the  Amendment  the 
power  of  the  states  to  oppress  any  one  under  any  pretense  or  in 
any  form  was  forever  ended ;  and  thenceforth  all  persons  within 
their  jurisdiction  could  claim  equal  protection  under  the  laws. 
.  .  .  No  state  —  such  is  the  sovereign  command  of  the  whole 
people  of  the  United  States  —  no  state  shall  touch  the  life,  the 
liberty,  or  the  property  of  any  person,  however  humble  his  lot 
or  exalted  his  station,  without  due  process  of  law ;  and  no  state, 
even  with  due  process  of  law,  shall  deny  to  any  one  within  its 
jurisdiction  the  equal  protection  of  the  laws." 

At  a  little  later  day  the  Supreme  Court  settled  another 
aspect  of  the  matter  of  vital  importance  to  the  harmony  of 
the  country.  In  Plessy  v.  Ferguson,1  speaking  through  Mr. 
Justice  Brown,  it  said:  "A  statute  which  implies  a  mere  legal 
distinction  between  the  white  and  colored  races  —  a  distinc- 
tion which  is  founded  in  the  color  of  the  two  races,  and  which 
must  always  exist  so  long  as  white  men  are  distinguished  from 
the  other  race  by  color  —  has  no  tendency  to  destroy  the  legal 
equality  of  the  two  races,  or  reestablish  a  state  of  involun- 
tary servitude.  Indeed,  we  do  not  understand  that  the  Thir- 
teenth Amendment  is  strenuously  relied  upon  by  the  plaintiff 
in  error  in  this  connection.  2.  By  the  Fourteenth  Amendment 
all  persons  born  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  made  citizens  of  the  United 
States  and  of  the  state  wherein  they  reside.  .  .  .  The  object  of 
the  Amendment  was  undoubtedly  to  enforce  the  absolute  equal- 
ity of  the  two  races  before  the  law,  but  in  the  nature  of  things 
it  could  not  have  been  intended  to  abolish  distinctions  based 
on  color,  or  to  enforce  social,  as  distinguished  from  political, 
equality,  or  a  commingling  of  the  two  races  upon  terms  unsatis- 
factory to  either.  Laws  permitting,  and  even  requiring  their 
separation  in  places  where  they  are  liable  to  be  brought  into 
contact  do  not  necessarily  imply  the  inferiority  of  either  race 
to  the  other,  and  have  been  generally,  if  not  universally,  re- 
cognized as  within  the  competency  of  the  state  legislatures  in 
the  exercise  of  their  police  power.  The  most  common  instance 
of  this  is  connected  with  the  establishment  of  separate  schools 
for  white  and  colored  children,  which  have  been  held  to  be 
a  valid  exercise  of  the  legislative  power  even  by  courts  of  states 
*  163  U.  S.  537- 


XL]  THE  CIVIL  WAR  AMENDMENTS  357 

where  the  political  rights  of  the  colored  race  have  been  longest 
and  most  earnestly  enforced.  ...  In  United  States  v.  Stan- 
ley (Civil  Rights  cases),  109  U.  S.  3,  it  was  held  that  an  Act  Civil  Righst 
of  Congress,  entitling  all  persons  within  the  jurisdiction  of  the  cases* 
United  States  to  the  full  and  equal  enjoyment  of  the  accom- 
modations, advantages,  facilities,  and  privileges  of  inns,  public 
conveyances  on  land  and  water,  theatres,  and  other  places  of 
amusement,  and  made  applicable  to  citizens  of  every  race  and 
color,  regardless  of  any  previous  condition  of  servitude,  was 
unconstitutional  and  void,  upon  the  ground  that  the  Fourteenth 
Amendment  was  prohibitory  upon  the  states  only,  and  the  leg- 
islation authorized  to  be  adopted  by  Congress  for  enforcing  it 
was  not  direct  legislation  on  matters  respecting  which  the  states 
were  prohibited  from  making  or  enforcing  certain  laws,  or  do- 
ing certain  acts,  but  was  corrective  legislation  such  as  might  be 
necessary  or  proper  for  counteracting  and  redressing  the  effect 
of  such  laws  or  acts.  In  delivering  the  opinion  of  the  Court, 
Mr.  Justice  Bradley  observed  that  the  Fourteenth  Amendment 
'does  not  invest  Congress  with  power  to  legislate  upon 
jects  that  are  within  the  domain  of  state  legislation,  but  to 
provide  modes  of  relief  against  state  legislation  or  state  action, 
of  the  kind  referred  to."1 

As  the  protection  guaranteed  by  our  new  Magna  Carta  ex-  Persons  born 
tends  to  all  "persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,"  it  is  not  strange  that 
persons  of  all  races,  as  well  as  artificial  persons,  should  have 
sought  shelter  under  its  paramount  authority.  Where  the  par- 
ents of  a  child  born  in  the  United  States  were  citizens,  there 
could  be  no  difficulty  as  to  its  nationality;  but  the  status  of 
a  child  born  in  the  United  States  of  Indians,  or  of  Chinese,  or 
other  alien  parentage  was  quite  another  matter.  In  the  case  of 
Elk  v.  Wilkins 1  it  was  held  that  an  Indian  born  a  member 
of  one  of  our  Indian  tribes  still  recognized  as  such  —  although 
he  had  voluntarily  separated  himself  from  his  tribe  and  taken 
up  his  residence  among  the  white  people,  but  without  being 
naturalized  or  taxed  —  was  born  "subject  to  the  jurisdiction" 
of  his  tribe.  Therefore  he  was  not  a  citizen  of  the  United  States, 
because  not  born  "subject  to  the  jurisdiction"  thereof.  Such 
was  the  prelude  to  the  great  case  in  which  was  settled  the  legal 
1  112  U.S.  94,98. 


358 


THE  AMERICAN  CONSTITUTION 


[Ci 


U.  S.  v.  Wong 
Kim  Ark. 


Rule  in  Cal- 
vin's case 
followed. 


A  corporation 
a  person, 


status  of  all  other  persons  born  in  the  United  States  of  alien 
parentage.  In  United  States  v.  Wong  Kim  Ark  1  it  was  held 
that  a  child  born  in  the  United  States  of  parents  of  Chinese 
descent  —  who  at  the  time  of  his  birth  are  subjects  of  the 
Emperor  of  China,  but  have  a  permanent  domicile  and  resid- 
ence in  this  country,  and  are  carrying  on  business  here,  and 
are  not  employed  in  any  diplomatic  or  official  capacity  under 
the  Emperor  of  China  —  becomes  at  the  time  of  his  birth  a 
citizen  of  the  United  States,  by  virtue  of  the  first  clause  of  the 
Fourteenth  Amendment.  Here  the  rule  of  the  civil  law  as  to 
the  allegiance  of  the  parents  was  set  aside  in  favor  of  the  com- 
mon law  rule  of  locality  of  birth,  under  which  it  has  been  long 
held  that  every  child  born  in  England  of  alien  parents  is  a 
natural  born  subject,  unless  the  child  of  a  diplomatic  represent- 
ative of  a  foreign  state,  or  of  an  alien  enemy  in  hostile  occupa- 
tion of  the  place  where  the  child  was  born.  In  tracing  that 
principle  with  its  qualifications  back  to  the  leading  case,  known 
as  Calvin's  case,  or  the  case  of  the  Postnati,2  decided  in  1608, 
the  Court,  speaking  through  Mr.  Justice  Gray,  said  that  the 
Constitution  of  the  United  States  must  be  interpreted  in  the 
light  of  the  common  law:  "The  interpretation  of  the  Constitu- 
tion of  the  United  States  is  necessarily  influenced  by  the  fact 
that  its  provisions  are  framed  in  the  language  of  the  English 
common  law,  and  are  to  be  read  in  the  light  of  its  history.  124 
U.  S.  478.  II.  The  fundamental  principle  of  the  common  law 
with  regard  to  English  nationality  was  birth  within  the  allegi- 
ance, also  called  'ligealty,'  'obedience,'  'faith,'  or  'power'  of 
the  King.  The  principle  embraced  all  persons  born  within  the 
King's  allegiance  and  subject  to  his  protection."  That  conclu- 
sion as  to  the  citizenship  of  a  child  born  of  alien  parentage  was 
not  reached  until  thirty  years  after  the  adoption  of  the  clause 
in  question.  Not  until  after  the  lapse  of  eighteen  years  was  it 
definitely  held  for  the  first  time,  in  the  case  of  Santa  Clara  Co. 
v.  Southern  Pacific  Railroad,3  that  a  corporation  is  a  person 
within  the  meaning  of  the  first  section.  Then  followed  the 
cases  of  Minn.  Ry.  Co.  v.  Beckwith,4  Covington  &  L.  Turnp. 
Road  Co.  v.  Sandford 6  and  Smyth  v.  Ames,6  in  which  "  it  is  now 

1  169  U.  S.  649  (1898).  4  129  U.  S.  268. 

2  See  The  Origin  and  Growth  of  the  6  164  U.  S.  578. 
Eng.  Const.,  ii,  227  sq.  6  169  U.  S.  466. 
_  8  118  U.S.  394  (1886). 


XL]  THE  CIVIL  WAR  AMENDMENTS  359 

settled  that  corporations  are  persons  within  the  meaning  of  the 
constitutional  provisions  forbidding  the  deprivation  of  pro- 
perty without  due  process  of  law,  as  well  as  the  denial  of  the 
equal  protection  of  the  laws."  Thus  it  was  settled  that  corpor-  not  a  citizen, 
ations  are  "persons"  but  not  "citizens"  entitled  to  the  "priv- 
ileges or  immunities  of  citizens  of  the  United  States."  As  the 
Santa  Clara  case  involved  a  domestic  corporation  it  was  after- 
wards held  in  Philadelphia  Fire  Ass.  v.  New  York,1  that  a  state 
could  prescribe  whatever  condition  it  saw  fit  for  permitting  a 
foreign  insurance  company  to  transact  business  within  its  lim- 
its even  to  the  extent  of  total  exclusion,  although  it  could  not 
exclude  an  individual.  Such  power  of  exclusion  cannot  be  ap-  Power  of 
plied,  however,  to  corporations  engaged  in  interstate  commerce,  excluaon- 
or  to  agencies  of  the  General  Government.  "The  only  limita- 
tion upon  this  power  of  the  state  to  exclude  a  foreign  corpor- 
ation from  doing  business  within  its  limits,  or  hiring  offices  for 
that  purpose,  or  to  exact  conditions  for  allowing  the  corpora- 
tion to  do  business  or  hire  offices  there,  arises  where  the  cor- 
poration is  in  the  employ  of  the  Federal  Government,  or  where 
its  business  is  strictly  commerce,  interstate  or  foreign.  The 
control  of  such  commerce,  being  in  the  Federal  Government,  is 
not  to  be  restricted  by  state  authority."  2 

When  the  first  section  of  the  Fourteenth  Amendment  pro-  spth  chapter  of 
vided,  "nor  shall  any  state  deprive  any  person  of  life,  liberty,  MagnaCarta, 
or  property,  without  due  process  of  law,"  it  cast  upon  the  Su- 
preme Court  the  profoundly  difficult  task  of  defining  and  ap- 
plying to  a  vast  number  of  subject-matters  an  historic  formula 
which  has  descended  to  us  from  the  Great  Charter  of  King 
John  (1215),  whose  thirty-ninth  chapter  declares  that  "no 
freeman  shall  be  arrested,  or  detained  in  prison,  or  disseized, 
or  outlawed,  or  banished,  or  in  any  way  molested ;  and  we  will 
not  set  forth  against  him,  nor  send  against  him,  unless  by  the 
lawful  judgment  of  his  peers  and  by  the  law  of  the  land."  In 
the  reissues  of  the  Great  Charter  this  provision  appears  with 
the  insertion  in  the  second  (2  Hen.  Ill,  1217)  and  third  (9  Hen. 
Ill,  1225)  charters  of  Henry  III,  of  the  words  "of  his  freehold 
or  liberties,  or  free  customs,"  so  that  the  clause  in  its  final  form 
is:  "No  freeman  shall  be  arrested,  or  detained  in  prison,  or  dis- 

1  119  U.  S.  no. 

2  Pembina  Con.  Silver  Mining  Co.  v.  Pa.,  125  U.  S.  181. 


THE  AMERICAN  CONSTITUTION 


[CH. 


Confinnatio 
Cart  arum, 
1297. 


Coke's  Second 
Institute,  1632. 


seized  of  his  freehold,  or  liberties,  or  free  customs,  or  outlawed, 
or  banished," 1  etc.  By  the  Confirmatio  Cartarum  of  1297  the 
Great  Charter,  which  came  to  be  regarded  with  almost  super- 
stitious reverence,  was  taken  out  of  the  category  of  statutes 
and  became  "a  sacred  text,  the  nearest  approach  to  a  'funda- 
mental statute '  that  England  has  ever  had."  2  As  such  a  docu- 
ment was  appealed  to  by  each  succeeding  generation  as  a  living 
guarantee  of  the  rights  to  which  it  aspired,  it  came  to  be  inter- 
preted in  each  age  according  to  its  needs  and  aspirations.  A 
famous  commentator  on  Goethe's  Faust  has  said :  "Like  all  the 
really  great  productions  of  literature  this  world-poem  possesses 
the  magic  power  of  appealing  in  a  different  way  to  every  new 
generation;  and  like  the  fathomless  crystal  lake  of  the  high 
Sierras  it  reflects  only  the  picture  of  the  beholder . " 3  And  so  the 
English  people  have  been  looking  from  age  to  age  into  the  Great 
Charter,  which  has  mirrored  for  each  succeeding  generation  its 
own  peculiar  conception  of  civil  liberty.  Out  of  the  English 
Renaissance  and  Reformation  grew  the  larger  conception  of 
that  subject  which  expressed  itself  in  the  Puritan  Revolution 
of  1640.  In  the  first  stage  of  the  struggle  with  the  Stuarts 
appeared  upon  the  scene  a  dogmatic  lawyer  whose  aspirations 
in  favor  of  liberty  were  deeply  colored  by  his  associations  with 
the  past.  Coke's  First  Institute,  begun  in  1621,  was  completed 
in  1628,  while  his  Second  Institute —  a  commentary  on  Magna 
Carta  and  other  statutes,  so  frequently  appealed  to  by  our 
courts  as  the  best  exposition  of  them  —  was  not  published 
until  1632.  In  estimating  the  value  of  Coke  as  an  expounder  of 
the  Great  Charter,  it  is  impossible  to  ignore  the  fact  that,  after 
having  sat  in  the  Star  Chamber,  he  died  September  3, 1634, 
while  the  entire  code  of  Star  Chamber  law  and  High  Commis- 
sion law  was  in  full  force.  As  an  illustration,  down  to  his  death 
the  system  of  compulsory  self-incrimination  was  a  part  of  the 
Star  Chamber  code.  During  the  one  hundred  and  forty-two 
years  that  intervened  between  the  death  of  Coke  and  the 


1  In  the  original  text  of  9  Henry 
III,  chapter  29  reads:  "Nullus  liber 
homo  capiatur  vel  imprisonetur  aut 
disseisietur  de  libero  tenemento  suo 
vel  libertatibus,  vel  liberis  consuetu- 
dinibus  suis,  aut  utlagetur,  aut  ex- 
uletur,  aut  aliquo  modo  destruatur, 


nee  super  eum  ibimus,  nee  super 
eum  mittemus,  nisi  per  legale  judi- 
cium  parium  suorum,  vel  per  legem 
terrae." 

2  Pollock  &  Maitland,  Hist.   (2d 
ed.)  i,  173. 

3  Dr.  Julius  Goebel's  Faust,  p.  vi. 


XL]  THE  CIVIL  WAR  AMENDMENTS  361 

severance  of  the  English  colonies  in  America  from  the  mother 
country,  what  may  be  called  the  ancient  Constitution  of  Eng- 
land, first  clearly  defined  in  the  Great  Charter,  was  transformed 
into  the  modern  Constitution  by  the  Revolutions  of  1640  and 
1688.  The  reformed  and  invigorated  constitutional  system 
that  stands  out  after  those  revolutions  was  a  vastly  wider  and 
more  complete  fabric  of  liberty  under  law  than  that  existing  in 
Coke's  time.  Those  revolutions  brought  into  being  many  new 
constitutional  principles  of  which  Coke  never  heard.  The  Blackstone, 
great  English  commentator,  Blackstone,  who  looked  into  "the  I7S8> 
fathomless  crystal  lake,"  in  1758  had  reflected  for  him  a  con- 
dition of  things  Coke  could  not  possibly  have  seen  in  1632.  As 
the  "Commentaries"  of  Blackstone  flooded  this  country  just 
before  the  Revolution,  American  statesmen  and  jurists  of  that 
day  knew  Coke  through  Blackstone,  with  his  doctrines  amended 
and  expanded  by  the  changes  the  Revolutions  of  1640  and  1688 
had  wrought  in  the  ancient  Constitution  as  it  stood  in  1632. 
Thus  trained  and  influenced,  the  founders  of  the  Republic 
epitomized  in  our  first  state  constitutions  the  modern  English 
Constitution  as  Blackstone  had  defined  it. 

If  anything  is  certain  in  the  history  of  any  country  it  is  that  Influence  of 
the  essence  of  the  English  constitutional  system  as  reformed 
by  the  Revolutions  of  1640  and  1688,  and  as  defined  by  Black-  tion, 
stone  in  1758,  passed  into  our  first  state  constitutions,  whose 
bills  of  rights  set  forth,  for  the  first  time,  in  a  written  and  dog- 
matic form,  the  entire  scheme  of  civil  liberty  as  it  existed  in 
England  in  1776.  The  draftsmen  of  those  bills  of  rights  would 
have  recoiled  with  horror  at  the  thought  that  they  were  found- 
ing American  constitutional  law  upon  the  ancient  English 
Constitution  as  it  existed  in  1632,  before  the  meeting  of  the 
Long  Parliament,  with  the  Star  Chamber  and  High  Commis- 
sion intact.  And  here  the  fact  should  be  noted  that  in  the  bills 
of  rights  adopted  in  1776,  or  shortly  thereafter,  certain  new 
principles  of  constitutional  law  that  had  come  into  existence 
on  the  other  side  of  the  Atlantic  were  here  cast  for  the  first 
time  in  a  dogmatic  form.  As  an  illustration,  reference  may  be 
made  to  the  Bill  of  Rights  of  Virginia  of  1776,  which  declares  Bill  of  Rights 
"that  the  legislative  and  executive  powers  of  the  state,  should  °f  Virginia, 
be  separate  and  distinct  from  the  judiciary."  Montesquieu1 
1  Spirit  of  Laws,  bk.  xi,  ch.  6. 


362 


THE  AMERICAN  CONSTITUTION 


[CH. 


Compulsory 
self-incrimina- 
tion  abolished. 


Restatements 
of  chapter  39. 


had  some  years  before  noted  the  existence  of  that  division  as 
peculiarly  distinctive  of  the  English  Constitution,  but  it  was 
first  stated  in  a  dogmatic  form  in  the  Virginia  Bill  of  Rights 
drafted  by  George  Mason.  In  the  same  instrument  it  is  stated 
as  a  principle  of  constitutional  law,  in  connection  with  trial  by 
jury,  that  no  man  can  "be  compelled  to  give  evidence  against 
himself,"  —  a  formula  repeated  in  almost  the  same  words  in 
most,  if  not  all,  of  the  contemporary  documents.  Not  until 
after  the  Revolution  of  1688,  and  as  a  consequence  of  it,  was 
the  principle  of  compulsory  self-incrimination  abolished.  As 
Stephen  has  expressed  it:  "Soon  after  the  Revolution  of  1688, 
the  practice  of  questioning  the  prisoner  died  out";1  it  was  not 
abolished  by  statute  or  ordinance.  And  so  it  came  to  pass  that 
the  exemption  from  that  cruel  provision  of  the  Star  Chamber 
code  was  first  defined  as  a  principle  of  constitutional  law  in 
the  American  bills  of  rights  of  1776.  In  the  same  way  passed 
into  those  documents  the  various  restatements  of  chapter  39 
of  the  Great  Charter  in  which  were  first  reflected  the  American 
conception  of  due  process  of  law. 

It  appears  in  the  following  forms  in  the  state  constitutions 
of  1776.  In  the  act  of  that  year,  continuing  the  charter  of  Con- 
necticut of  1662  as  the  organic  law  of  the  state,  it  is  provided 
"that  no  man's  life  shall  be  taken  away:  no  man's  honor  or 
good  name  shall  be  stained :  no  man's  person  shall  be  arrested, 
restrained,  banished,  dismembered,  nor  any  ways  punished:  no 
man  shall  be  deprived  of  his  wife  or  children:  no  man's  goods  or 
estate  shall  be  taken  away  from  him,  nor  any  ways  indamaged 
under  the  color  of  law,  or  countenance  of  authority;  unless 
clearly  warranted  by  the  laws  of  this  state."  In  Maryland's 
constitution  of  the  same  year  it  is  provided  "that  every  free- 
man, for  any  injury  done  him  in  his  person  or  his  property, 
ought  to  have  remedy,  by  the  course  of  the  law  of  the  land,  and 
ought  to  have  justice  and  right  freely  without  sale,  freely  with- 
out any  denial,  and  speedily  without  delay,  according  to  the  law 
of  the  land."  In  North  Carolina's  constitution  of  the  same  year 
it  is  provided  "that  no  freeman  ought  to  be  taken,  imprisoned, 
or  disseized  of  his  freehold,  liberties,  or  privileges,  or  outlawed, 
or  exiled,  or  in  any  manner  destroyed,  or  deprived  of  his  life, 
liberty,  or  property,  but  by  the  law  of  the  land."  In  Pennsyl- 
1  History  of  the  Criminal  Law  of  England,  i,  440. 


XL]  THE  CIVIL  WAR  AMENDMENTS  363 

vania's  constitution  of  the  same  year  it  is  provided,  "nor  can 
any  man  be  justly  deprived  of  his  liberty  except  by  the  laws  of 
the  land,  or  the  judgment  of  his  peers."  In  Virginia's  consti- 
tution of  the  same  year  it  is  provided  "that  no  man  be  de- 
prived of  his  liberty,  except  by  the  law  of  the  land  or  by  the 
judgment  of  his  peers."  In  Vermont's  constitution,  drafted  in 
1777  and  affirmed  in  1779,  it  is  provided,  "nor  can  any  man 
be  justly  deprived  of  his  liberty,  except  by  the  laws  of  the  land 
or  the  judgment  of  his  peers."  In  South  Carolina's  constitu- 
tion of  1778  it  is  provided  "that  no  freeman  of  this  State  be 
taken  or  imprisoned,  or  disseized  of  his  freehold,  liberties,  or 
privileges,  or  outlawed,  exiled,  or  in  any  manner  disseized  or  de- 
prived of  his  life,  liberty,  or  property,  but  by  the  judgment  of 
his  peers  or  by  the  law  of  the  land."  In  Massachusetts'  con- 
stitution of  1 780  it  is  provided  that  "no  subject  shall  be  arrested, 
imprisoned,  despoiled,  or  deprived  of  his  property,  immunities, 
or  privileges,  put  out  of  the  protection  of  the  law,  exiled  or 
deprived  of  his  life,  liberty,  or  estate,  but  by  the  judgment  of 
his  peers,  or  the  law  of  the  land."  In  the  New  Hampshire 
constitution  of  1784  the  same  provision  is  repeated,  word  for 
word. 

An  attempt  has  now  been  made  to  state  within  a  narrow  com-  Genesis  of  Eng- 
pass  the  history  of  the  famous  formula  that  underlies  the  Eng-  JJf^JJJJ*" 
lish  conception  of  due  process  of  law,  from  its  advent  in  the  cess  of  law. 
Great  Charter  of  1215  down  to  its  embodiment  in  the  Ameri- 
can state  constitutions  adopted  in  1 776  or  shortly  thereafter. 
Emphasis  has  been  given,  first,  to  the  fact  that  during  the 
five  hundred  and  sixty-one  years  intervening  between  those 
dates  the  meaning  of  the  formula  varied  from  age  to  age,  each 
generation  perceiving  in  it  its  own  peculiar  conception  of  civil 
liberty;  second,  to  the  fact  that  our  American  states  adopted 
it  with  the  meaning  attached  to  it  in  1776.  If  Bishop  Stubbs 
may  say  that  "the  whole  of  the  constitutional  history  of  Eng- 
land is  little  more  than  a  commentary  on  Magna  Carta,"  1  we 
may  say  that  the  very  heart,  the  very  essence  of  that  history  is 
embodied  in  the  39th  chapter,  whose  outcome  has  transformed 
the  government  of  England  into  a  government  of  law  as  dis- 
tinguished from  a  government  of  functionaries.  In  the  weighty 
words  of  Lieber,  "The  guarantee  of  the  supremacy  of  law  leads 
1  Constitutional  History,  i,  572. 


364  THE  AMERICAN  CONSTITUTION  [Cn. 

to  a  principle  which,  so  far  as  I  know,  it  has  never  been  at- 
tempted to  transplant  from  the  soil  inhabited  by  Anglican  peo- 
A  government    pie,  and  which,  nevertheless,  has  been,  in  our  system  of  liberty, 
anguished1*"      ^  natural  production  of  a  thorough  government  of  law  as 
from  one  of       contradistinguished  to  a  government  of  functionaries."1  This 
functionaries.     purely  Anglican  "guarantee  of  the  supremacy  of  law"  first 
passed  into  the  Constitution  of  the  United  States  as  a  part  of 
the  Fifth  Amendment,  which  provides  that  "no  person  shall 
be  held  to  answer  for  a  capital,  or  otherwise  infamous  crime, 
unless  on  a  presentment  or  indictment  of  a  grand  jury,  except 
in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia, 
when  in  actual  service  in  time  of  war  or  in  public  danger ;  nor  shall 
any  person  be  subject  for  the  same  offense  to  be  twice  put  in 
jeopardy  of  life  or  limb ;  nor  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  lib- 
erty, or  property,  without  due  process  of  law;  nor  shall  private 
property  be  taken  for  public  use,  without  just  compensation." 
Murray  ».  Strangely  enough,  not  until  the  judgment  in  Murray  v.  Ho- 

Co.,°i8s6  *  boken  Land  Co.,2  rendered  in  1856,  was  the  clause  providing 
that  "no  person  shall  be  ...  deprived  of  life,  liberty,  or  pro- 
perty, without  due  process  of  law"  submitted  to  the  Supreme 
Court  of  the  United  States,  where  it  was  expounded  in  the  light 
of  its  history.  In  that  case  the  Court,  speaking  through  Mr. 
Justice  Curtis,  said:  "The  effect  of  the  proceedings  authorized 
by  the  Act  in  question  is  to  deprive  the  party,  against  whom 
the  warrant  issues,  of  his  life  and  property,  without  due  process 
of  law ;  and  therefore  is  in  conflict  with  the  fifth  article  of  the 
Amendments  of  the  Constitution.  .  .  .  The  words  '  due  process 
of  law '  were  undoubtedly  intended  to  convey  the  same  mean- 
ing as  the  words  'by  the  law  of  the  land,'  in  Magna  Carta. 
Lord  Coke  in  his  commentary  on  those  words  (2  Inst.  50),  says, 
they  mean  due  process  of  law.  The  constitutions  which  had 
been  adopted  by  the  several  states  before  the  formation  of  the 
Federal  Constitution,  following  the  language  of  the  Great 
Charter  more  closely,  generally  contained  the  words,  'but  by 
the  judgment  of  his  peers,  or  the  law  of  the  land.'  .  .  .  To  have 
taken  the  clause  'law  of  the  land,'  without  its  immediate  con- 
text, might  possibly  have  given  rise  to  doubts,  which  would  be 

1  Civil  Liberty  and  Self-Government,  91. 

2  18  Howard,  272. 


XL]  THE   CIVIL   WAR  AMENDMENTS  365 

effectually  dispelled  by  using  those  words  which  the  great 
commentator  on  Magna  Carta  had  declared  to  be  the  true 
meaning  of  the  phrase '  law  of  the  land '  in  that  instrument,  and 
which  were  undoubtedly  then  received  as  their  true  meaning." 
Here  began  the  manifest  historical  error  of  appealing  to  Coke's  A  manifest 
commentary  on  Magna  Carta,  published  in  1632,  as  the  true  hlstoncal 
key  to  its  meaning,  instead  of  to  the  "  Commentaries  "  of  Black- 
stone,  put  in  their  present  form  in  1758,  after  the  meaning  of 
due  process  of  law  had  been  vastly  widened  by  the  results  of 
the  Revolutions  of  1640  and  1688.  The  historical  error  thus  in- 
augurated was  repeated  when  in  1878  the  Supreme  Court  was 
called  upon  for  the  first  time  to  construe,  in  Davidson  v.  New  Davidson  v. 
Orleans,1  that  clause  of  the  Fourteenth  Amendment  which  de-  NewOrleans- 
clares,  "nor  shall  any  state  deprive  any  person  of  life,  liberty, 
or  property,  without  due  process  of  law."  In  that  case  the 
Court,  speaking  through  Mr.  Justice  Miller,  said:  "The  pro- 
hibition against  depriving  the  citizen  or  subject  of  his  life, 
liberty,  or  property,  without  due  process  of  law,  is  not  new  in 
the  constitutional  history  of  the  English  race.  It  is  not  new 
in  the  constitutional  history  of  this  country,  and  it  was  not 
new  in  the  Constitution  of  the  United  States  when  it  became 
a  part  of  the  Fourteenth  Amendment,  in  the  year  1866.  The 
equivalent  of  the  phrase  '  due  process  of  law,'  according  to  Lord 
Coke,  is  found  in  the  words  'law  of  the  land,'  in  the  Great 
Charter,  in  connection  with  the  writ  of  habeas  corpus,  the 
trial  by  jury,  and  other  guaranties  of  the  rights  of  the  subject 
against  the  oppression  of  the  Crown." 

As  early  as  1883,  Mr.  Justice  Matthews,  when  confronted,  in  Hurtadot». 
Hurtado  v.  California,2  with  Mr.  Justice  Curtis's  misleading  his-  Califomia- 
torical  statement,  rejected  it,  saying:  "This,  it  is  argued,  fur- 
nishes an  indispensable  test  of  what  constitutes  '  due  process  of 
law ' :  that  any  proceeding  otherwise  authorized  by  law,  which 
is  not  thus  sanctioned  by  usage,  or  which  supersedes  and  dis- 
places one  that  is,  cannot  be  regarded  as  due  process  of  law.  .  .  . 
But  to  hold  that  such  a  characteristic  is  essential  to  due  pro- 
cess of  law,  would  be  to  deny  every  quality  of  the  law  but  its 
age,  and  to  render  it  incapable  of  progress  or  improvement.  It 
would  be  to  stamp  upon  our  jurisprudence  the  unchangeable- 
ness  attributed  to  the  laws  of  the  Medes  and  Persians.  This 
1  96  U.  S.  97.  '  iioU.  8.528. 


366  THE  AMERICAN  CONSTITUTION  [Cu. 

would  be  all  the  more  singular  and  surprising,  in  this  quick  and 
active  age,  when  we  consider  that,  owing  to  the  progressive  de- 
velopment of  legal  ideas  and  institutions  in  England,  the  words 
of  Magna  Carta  stood  for  very  different  things,  AT  THE  TIME  OF 

THE  SEPARATION  OF  THE  AMERICAN  COLONIES,  from  what  they 

represented  originally.  ...  In  this  country  written  constitu- 
tions were  deemed  essential  to  protect  the  rights  and  liberties 
of  the  people  against  the  encroachments  of  power  delegated 
to  their  governments,  and  the  provisions  of  Magna  Carta  were 
incorporated  into  Bills  of  Rights'1',  that  is,  into  bills  of  rights 
of  the  first  state  constitutions,  because  there  were  no  other 
bills  of  rights.  In  these  golden  sentences  Mr.  Justice  Mat- 
thews solved  the  problem  by  announcing  that  the  Supreme 
Court,  when  construing  the  due  process  of  law  clause  as  it 
appears  in  the  Fifth  and  Fourteenth  Amendments,  should  take 
that  formula  with  the  meaning  annexed  to  it  in  English  consti- 
tutional law,  "at  the  time  of  the  separation  of  the  American 
Colonies'1  as  contradistinguished  from  the  meaning  annexed  to 
it  in  1632,  when  Coke's  Second  Institute  was  published.  That 
conclusion  he  greatly  strengthened  by  the  statement  that  "the 
provisions  of  Magna  Carta  were  incorporated  into  Bills  of 
Rights,"  that  is,  into  the  bills  of  rights  of  our  first  state  con- 
stitutions. Thus  a  new  and  unassailable  historical  test  was 
laid  down  as  a  guide  whenever  a  particular  law  or  procedure 
is  drawn  in  question  on  the  ground  that  it  is  wanting  in  due 
process  of  law,  and  that  new  test  received  emphatic  confirma- 
tion when  the  Supreme  Court,  speaking  through  Mr.  Justice 
Lowe  C.Kansas.  Gray  in  Lowe  v.  Kansas,1  said:  "Whether  the  mode  of  pro- 
ceeding prescribed  by  this  statute,  and  followed  in  this  case, 
was  due  process  of  law  depends  upon  the  question  whether  it  was 
in  substantial  accord  with  the  law  and  usage  of  England  BEFORE 
THE  DECLARATION  OF  INDEPENDENCE,  and  in  this  country  since 
it  became  a  nation,  in  similar  cases."  That  emphatic  refusal  to 
recognize  as  a  correct  historical  test  the  condition  of  English 
constitutional  law  as  it  existed  in  1632  was  repeated  in  no  un- 
Twining ».  certain  terms  in  Twining  v.  New  Jersey,2  when  the  Supreme 
New  Jersey.  Court,  speaking  through  Mr.  Justice  Moody,  said:  "It  does  not 
follow,  however,  that  a  procedure  settled  in  English  law  at  the 
time  of  the  emigration,  and  brought  to  this  country  and  prac- 
1  163  U.  S.  81.  2  211  U.  S.  101. 


XL]  THE  CIVIL  WAR  AMENDMENTS  367 

ticed  by  our  ancestors,  is  an  essential  element  of  due  process  of 
law.  If  that  were  so  the  procedure  of  the  first  half  of  the  seventeenth 
century  would  be  fastened  upon  American  jurisprudence  like 
a  strait-jacket,  only  to  be  loosed  by  constitutional  amendment" 
Let  us  hope  that  it  has  thus  been  irrevocably  settled  that  when 
the  new  Magna  Carta,  by  which  the  national  citizenship  cre- 
ated by  the  first  section  of  the  Fourteenth  Amendment  is 
guarded,  is  to  be  construed,  it  will  not  be  held  to  be  the  "strait- 
jacket"  defined  in  Coke's  Second  Institute  published  in  1632, 
before  the  meeting  of  the  Long  Parliament,  but  that  wider  and 
more  enlightened  system  of  civil  liberty  as  understood  in  Eng- 
land after  the  results  of  the  glorious  Revolutions  of  1640  and 
1688  had  been  fully  worked  out. 

After  all  that  has  been  said  is  admitted,  the  fact  remains  that  Rule  of  fa 
it  is  gravely  difficult  in  a  particular  case  to  determine  when  the 
act  of  a  state,  executive,  legislative,  or  judicial,  takes  away 
from  a  citizen  of  the  United  States,  as  such,  a  right  so  funda- 
mental that  its  loss  may  be  said  to  "  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law."  Conceding 
that  that  formula  is  to  be  taken  here  with  the  broad  and  liberal 
meaning  attached  to  it  at  the  time  of  the  severance  from  the 
mother  country,  the  task  of  defining  its  precise  scope  and  mean- 
ing is  so  difficult  that  the  Supreme  Court  has  persistently  de- 
clined to  undertake  it.  In  the  place  of  a  definition  the  Court  has 
discreetly  substituted  a  working  rule  best  described  in  its  own 
language:  "But,  apart  from  the  imminent  risk  of  a  failure  to 
give  any  definition  which  would  be  at  once  perspicuous,  com- 
prehensive, and  satisfactory,  there  is  wisdom,  we  think,  in  the 
ascertaining  of  the  intent  and  application  of  such  an  import- 
ant phrase  in  the  Federal  Constitution,  by  the  gradual  pro- 
cess of  judicial  inclusion  and  exclusion,  as  the  cases  presented 
for  decision  shall  require,  with  the  reasoning  on  which  such 
decisions  may  be  founded."1  In  a  word,  the  rule  is  that  when 
a  citizen  of  the  United  States,  as  such,  complains  that  a  funda- 
mental right  guaranteed  by  the  clause  in  question  has  been 
taken  away,  the  Court  will  say  in  that  particular  case  whether 
the  right  is  an  incident  of  national  citizenship,  and  as  such 
within  its  protection,  or  an  incident  of  state  citizenship,  whose 
protection  belongs  to  the  state  alone. 

1  Davidson  v.  New  Orleans,  96  U.  S.  97. 


368 


THE  AMERICAN  CONSTITUTION 


[CH. 


The  effort  to 
narrow  federal 
jurisdiction. 


A  state  may 
abolish  grand 
jury  system. 


May  alter 
number  of 
petit  jury. 


That  there  is  a  strong  practical  motive  always  impelling  the 
Court  to  narrow  its  jurisdiction  by  taking  the  latter  view,  has 
been  admitted  by  the  Court  itself.  After  stating  that  so  long 
as  the  due  process  of  law  clause  was  only  a  part  of  the  Fifth 
Amendment  it  "has  rarely  been  invoked  in  the  judicial  forum, 
or  the  more  enlarged  theatre  of  public  discussion,"  attention 
was  called  to  the  fact,  as  early  as  1878,  that  "while  it  has  been 
a  part  of  the  Constitution,  as  a  restraint  upon  the  power  of  the 
states,  only  a  few  years,  the  docket  of  this  Court  is  crowded  with 
cases  in  which  we  are  asked  to  hold  that  state  courts  and  state 
legislatures  have  deprived  their  citizens  of  life,  liberty,  or  pro- 
perty, without  due  process  of  law."1  Since  that  statement  was 
made,  the  swelling  tide  of  litigation  of  that  character  has  in- 
creased the  necessity  that  compels  the  Court  to  decline  jurisdic- 
tion in  every  case  not  manifestly  within  the  terms  of  the  clause 
in  question.  In  the  famous  Slaughter-House  cases  the  Court 
justly  declined  jurisdiction  upon  the  ground  "that  the  priv- 
ileges and  immunities  relied  on  in  argument  are  those  which 
belong  to  citizens  of  the  states  as  such,  and  that  they  are  left 
to  the  state  governments  for  security  and  protection."  In 
Davidson  v.  New  Orleans  the  Court  declined  jurisdiction  on  the 
same  ground,  saying,  "It  [the  act  of  the  state]  may  violate 
some  provision  of  the  state  constitution  against  unequal  taxa- 
tion, but  the  Federal  Constitution  imposes  no  restraints  on  the 
states  in  that  regard."  In  Hurtado  v.  California  the  Court  held 
that  a  citizen  of  the  United  States  cannot  complain  of  a  convic- 
tion in  a  state  court  upon  an  information  for  murder  in  the  first 
degree  and  a  sentence  of  death  thereon,  because  the  due  pro- 
cess of  law  clause  in  question  does  not  necessarily  require  an 
indictment  by  a  grand  jury  in  a  prosecution  by  a  state  for  mur- 
der. The  states  are  thus  enabled  to  abolish,  whenever  they  see 
fit,  the  grand  jury  system,  as  a  part  of  the  machinery  of  crim- 
inal justice.  In  Maxwell  v.  Dow,  the  Court,  after  affirming  the 
case  just  cited,  went  a  step  further  by  declaring  that  "if  the 
state  has  the  power  to  abolish  the  grand  jury  and  the  conse- 
quent proceeding  by  indictment,  the  same  course  of  reason- 
ing which  established  that  right  will  and  does  establish  the 
right  to  alter  the  number  of  the  petit  jury  from  that  provided 
by  the  common  law."  In  that  case  the  Court  emphasized  the 
1  The  Slaughter-House  cases,  16  Wall.  36. 


XL]  THE   CIVIL   WAR  AMENDMENTS  369 

doctrine  that  the  adoption  of  the  Fourteenth  Amendment 
has  not  had  the  effect  of  making  all  the  provisions  contained 
in  the  first  eight  amendments  operative  in  state  courts,  on 
the  ground  that  the  fundamental  rights  protected  by  those 
amendments  are,  by  virtue  of  the  Fourteenth  Amendment, 
to  be  regarded  as  privileges  or  immunities  of  citizens  of  the 
United  States. 

While  the  tendency  of  the  foregoing  decisions  is  clearly  in 
the  right  direction,  it  is  difficult  for  a  student  of  English  consti- 
tutional law  to  assent  to  the  conclusion  reached  in  Twining  v.  An  unsound 
New  Jersey,  in  which  it  was  held  that  exemption  from  self-  conclusion- 
incrimination  —  so  firmly  settled  in  the  mother  country  before 
the  separation  that  all  or  nearly  all  of  the  original  state  con- 
stitutions bristle  with  a  solemn  restatement  of  it  —  is  not  one 
of  the  fundamental  rights  of  national  citizenship  guaranteed 
by  the  clause  in  question.  Mr.  Justice  Harlan  was  right  when 
he  said:  "I  cannot  support  any  judgment  declaring  that  im- 
munity from  self-incrimination  is  not  one  of  the  privileges  or 
immunities  of  national  citizenship,  nor  a  part  of  the  liberty 
guaranteed  by  the  Fourteenth  Amendment  against  hostile  state 
action."  His  dissenting  opinion  should  have  been  the  judg- 
ment of  the  Court.  While  Mr.  Justice  Moody's  statement,  that 
"none  of  the  great  instruments  in  which  we  are  accustomed 
to  look  for  the  declaration  of  fundamental  rights  made  refer- 
ence to  it.  The  privilege  was  not  dreamed  of  for  hundreds  of 
years  after  Magna  Carta  (1215),  and  could  not  have  been  im- 
plied in  the  'law  of  the  land'  there  secured,"  is  true,  —  it  is 
unimportant.  All  of  the  fundamental  rights  that  emerged 
from  the  Revolutions  of  1640  and  1688  were  not  formulated 
in  documents  prior  to  the  separation.  A  conspicuous  example 
is  to  be  found  in  the  freedom  of  speech  and  the  press  of  which 
no  trace  can  be  found  either  in  Magna  Carta  or  in  any  English 
document  prior  to  1776.  The  student  of  American  constitu-  importance  of 
tional  law  should  never  for  a  moment  forget  that  the  best  epi- 
tomes  of  the  reformed  English  Constitution  ever  written  are 
to  be  found  in  the  bills  of  rights  of  our  first  state  constitutions 
drafted  by  men  who  knew  perfectly  what  rights  were  funda- 
mental at  that  time.  The  fact  that  they  recognized,  with  won- 
derful unanimity,  that  the  exemption  from  self-incrimination 
had  become  fundamental,  and  that  as  such  they  made  it  one 


370  THE  AMERICAN  CONSTITUTION  [Cn. 

of  the  foundation-stones  of  our  American  system,  should  be 
conclusive  on  every  American  court. 

Prohibition  From  the  outset  it  has  been  settled  "that  it  is  no  matter  by 

state  acts°  *"  w^at  proceeding,  or  in  what  manner,  the  state  deprives  the 
person  of  life,  liberty,  or  property,  or  denies  him  the  equal  pro- 
tection of  the  law,  without  due  process  of  law,  whether  by  legis- 
lation or  judicial  decision,  or  by  what  officer  or  agent,  or  agency, 
so  it  be  by  state  authority. " 1  In  Scott  v.  McNeal,2  it  is  said : 
"These  prohibitions  [of  the  Fourteenth  Amendment]  extend 
to  all  acts  of  the  state,  whether  through  its  legislative,  its  ex- 
ecutive, or  its  judicial  authorities.  .  .  .  Upon  a  writ  of  error  to 
review  the  judgment  of  the  highest  court  of  a  state  upon  the 
ground  that  the  judgment  was  against  a  right  claimed  under 
the  Constitution  of  the  United  States,  this  Court  is  no  more 
bound  by  that  court's  construction  of  a  statute  of  the  territory  or 
of  the  state,  when  the  question  is  whether  the  statute  provided 
for  the  notice  required  to  constitute  due  process  of  law,  than 
when  the  question  is  whether  the  statute  created  a  contract 
which  has  been  impaired  by  a  subsequent  law."  In  Twining 
v.  New  Jersey,3  the  Court  said :  "The  judicial  act  of  the  highest 
court  of  the  state,  in  authoritatively  construing  and  enforcing 
its  laws,  is  the  act  of  the  state." 

After  the  Parliament  of  Great  Britain,  once  a  local  legisla- 
ture, had  widened  the  circle  of  its  jurisdiction,  Burke  said:  "I 
think  her  nobler  capacity  is  what  I  call  her  imperial  character ; 
in  which,  as  from  the  throne  of  heaven,  she  superintends  all 
the  several  inferior  legislatures,  and  guides  and  controls  them 
Supreme  Court  all  without  annihilating  any." 4  In  the  high  place  to  which  the 
guardian  of  Supreme  Court  has  been  lifted  as  the  ultimate  guardian  of  the 
new  national  citizenship,  it  has  been  given,  as  never  before,  the 
power  to  superintend  all  the  agencies  of  the  states ;  and  it  may 
be  truly  said  that  it  is  faithfully  striving  to  guide  and  control 
them  all  without  annihilating  any.  No  trust  so  vast  or  so  deli- 
cate was  ever  before  committed  to  any  court  in  the  world's 
history,  —  upon  its  wise  and  serene  execution  must  mainly  de- 
pend the  future  harmony  between  the  state  and  federal  systems. 

1  Brannon,     Fourteenth    Amend-  *  154  U.  S.  34. 

ment,  97,  citing  Ex  parte  Virginia,  s  211  U.  S.  90. 

313;  Chicago,  B.&Q.  Co.  v.  Chicago,  4  Speech  on  American  Taxation, 

1 66  U.  S.  685.  April  19, 1774,  Works  (4thed.),ii,  75. 


XL]  THE  CIVIL  WAR  AMENDMENTS  371 

It  has  opened  up  a  fresh  fountain  of  judge-made  law  from 
which  a  copious  stream  has  been  flowing  for  more  than  forty 
years.  Whenever  a  new  problem  arises,  it  is  solved  by  a  new 
judge-made  rule,  expounded  in  a  treatise  corresponding  very 
closely  to  the  responses  made  by  the  jurisconsults  in  the  creat- 
ive epoch  of  Roman  jurisprudence.  Such  treatises,  still  in  a 
plastic  form,  will  sooner  or  later  be  systematized  and  reduced 
to  compendia  as  the  responses  were  in  Roman  law.1 

In  conclusion,  the  fact  should  be  noted  that  the  old  three-  Old  three-fifths 
fifths  rule  as  to  Representatives  and  direct  taxes  (Article  I,  mle  abolished- 
Section  2,  Clause  3)  has  been  amended  by  Section  2  of  the 
Fourteenth  Amendment,  which  provides  that  "Representa- 
tives shall  be  apportioned  among  the  states  according  to  their 
respective  numbers,  counting  the  whole  number  of  persons  in 
each  state,  excluding  Indians  not  taxed.  But  when  the  right 
to  vote  at  any  election  for  the  choice  of  electors  for  President 
and  Vice-President  of  the  United  States,  Representatives  in 
Congress,  the  executive  and  judicial  officers  of  a  state,  or  the 
members  of  the  legislature  thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  state,  being  twenty-one  years  of  age,  and 
citizens  of  the  United  States,  or  in  any  way  abridged,  ex- 
cept for  participation  in  rebellion,  or  other  crime,  the  basis 
of  representation  therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to  the 
whole  number  of  male  citizens  twenty-one  years  of  age  in 
such  state." 

"A  few  years'  experience  satisfied  the  thoughtful  men  who  Fifteenth 
had  been  the  authors  of  the  other  two  Amendments  that,  not-  Amendment, 
withstanding  the  restraints  of  those  two  articles  on  the  states, 
and  the  laws  passed  under  the  additional  powers  granted  to 
Congress,  these  were  inadequate  for  the  protection  of  life,  lib- 
erty, and  property,  without  which  freedom  to  the  slave  was  no 
boon.  They  were  in  all  those  states  denied  the  right  of  suffrage. 
The  laws  were  administered  by  white  men  alone.   It  was  urged 
that  a  race  of  men  distinctively  marked  as  was  the  negro,  living 
in  the  midst  of  another  and  dominant  race,  could  never  be  fully 

1  An  inspection  of  the  annotated  of  the  Fourteenth  Amendment,  con- 
Constitution  in  Appendix  xx  will  stitute  of  themselves  a  distinct  lit- 
disclose  the  fact  that  the  cases  so  far  erature  to  which  several  text-books 
decided,  involving  the  construction  have  already  been  devoted. 


372 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Right  to  vote 
drawn  from 
state. 


Electors  of 
House  of 
Representa- 
tives. 


secured  in  their  persons  and  their  property  without  the  right 
of  suffrage.  Hence  the  Fifteenth  Amendment,  which  declares 
that '  the  right  of  a  citizen  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  any  state  on  account  of  race,  color, 
or  previous  condition  of  servitude.'  The  negro  having,  by  the 
Fourteenth  Amendment,  been  declared  to  be  a  citizen  of  the 
United  States,  is  thus  made  a  voter  in  every  state  of  the  Union." l 
Our  political  system  as  a  whole  rests  upon  the  fundamental 
principle  that  the  right  to  vote  in  a  state  comes  from  the  state, 
which  alone  possesses  the  power  to  confer  the  franchise.  Only 
from  the  fountain  of  state  power  can  the  right  to  vote  for  offi- 
cials, state  or  federal,  be  drawn.  The  electors  of  President  and 
Vice-President  are  state  officers,  the  method  of  whose  appoint- 
ment the  Federal  Constitution  has  no  power  to  direct  or  con- 
trol. In  McPherson  v.  Blacker,2  it  was  held  that  the  Constitu- 
tion does  not  provide  that  the  appointment  of  electors  shall  be 
by  popular  vote,  nor  that  the  electors  shall  be  voted  for  upon 
a  general  ticket,  nor  that  the  majority  of  those  who  exercise  the 
elective  franchise  can  alone  choose  the  electors.  It  recognizes 
that  the  people  act  through  their  representatives  in  the  legis- 
lature, and  leaves  it  to  the  legislature  exclusively  to  determine 
the  method  of  effecting  the  object.  The  appointment  and  mode 
of  appointment  of  electors  belong  exclusively  to  the  states 
under  the  Constitution.  The  qualifications  of  the  electors  of  the 
House  of  Representatives  are  prescribed  by  the  states.  Such 
"electors  in  each  state  shall  have  the  qualifications  requisite 
for  electors  of  the  most  numerous  branch  of  the  state  legis- 
latures." As  explained  heretofore,  when  our  state  system  was 
founded  the  right  to  vote  was  in  the  mother  country  the  priv- 
ilege of  the  few,  not  of  the  many.  At  the  time  of  the  separation 
the  entire  electorate  of  the  British  Isles  (which  included,  in 
1909,  7,615,438  electors)  did  not  exceed  400 ,000. 3  Every  Amer- 
ican state  was  founded  on  the  principle  that  it  alone  could  con- 
fer the  right  to  vote  upon  the  few  or  the  many  as  its  sovereign 
will  deemed  best.  To-day  any  American  state  can  so  amend  its 
constitution  as  to  provide  that  no  man  can  vote  until  he 
attains  his  ninetieth  year,  or  that  no  man  can  vote  unless  he  is 


1  Mr.     Justice     Miller     in     the 
Slaughter- Houses  cases,  16  Wall.  36. 
8  146  U.  S.  i. 


1  See  the  estimate  of  Dr.  Gneist, 
History  of  the  English  Constitution, 
p.  722. 


XL]  THE  CIVIL   WAR  AMENDMENTS  373 

possessed  of  real  property  to  the  value  of  a  million  of  dollars, 
or  it  might  provide  that  the  right  to  vote  shall  be  vested  in 
women  only.  Such  a  state  constitution  would  not  conflict  with 
the  national  Constitution  in  any  particular  whatsoever.  The 
only  limitation  imposed  by  that  Constitution  upon  the  sover-  Only  one 
eign  power  of  the  states  to  regulate  the  franchise  is  that  con-  Jj^^  wer 
tained  in  the  Fifteenth  Amendment,  which  provides  that  "the 
right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied 
or  abridged  by  the  United  States  or  by  any  state  on  account  of 
race,  color,  or  previous  condition  of  servitude"  Unless  the  right 
to  vote,  which  is  derived  from  the  state,  is  "denied  or  abridged  " 
upon  that  ground,  the  Amendment  has  no  application.   It  was 
therefore  held,  in  United  States  v.  Cruikshank,1  that  the  right 
of  suffrage  is  not  a  necessary  attribute  of  national  citizenship, 
but  exemption  from  discrimination  in  the  exercise  of  that  right 
"on  account  of  race,  color,  or  previous  condition  of  servitude" 
is.  The  right  to  vote  in  the  states  comes  from  the  states,  but 
the   right  of  exemption  from  the  prohibited  discrimination 
comes  from  the  United  States;  the  former  has  not  been  granted 
or  secured  by  the  Federal  Constitution,  but  the  latter  has  been. 
That  conclusion  was  first  announced  in  United  States  v.  Reese,2 
in  which  it  was  said  that  the  Amendment  in  question  does  not 
confer  the  right  of  suffrage  upon  any  one.   It  prevents  the 
states  or  the  United  States,  however,  from  giving  preference, 
in  this  particular,  to  one  citizen  of  the  United  States  over  an- 
other on  account  of  race,  color,  or  previous  condition  of  servi- 
tude. The  whole  matter  was  ably  summed  up  in  Pope  v.  Wil-  pope  v. 
Hams,3  in  which  the  Court,  speaking  through  Mr.  Justice  Peck-  Williams, 
ham,  said:  "The  privilege  to  vote  in  any  state  is  not  given  by 
the  Federal  Constitution,  or  by  any  of  its  amendments.   It  is 
not  a  privilege  springing  from  citizenship  of  the  United  States. 
Minor  v.  Happersett,  21  Wall.  162.   It  may  not  be  refused  on 
account  of  race,  color,  or  previous  condition  of  servitude,  but  it 
does  not  follow  from  mere  citizenship  of  the  United  States.   In 
other  words,  the  privilege  to  vote  in  a  state  is  within  the  juris- 
diction of  the  state  itself,  to  be  exercised  as  the  state  may  di- 
rect, and  upon  such  terms  as  the  state  may  deem  proper,  pro- 
vided, of  course,  no  discrimination  is  made  between  individuals, 
in  violation  of  the  Federal  Constitution.    The  state  might 
1  92  U.  S.  542.  »  92  U.  S.  214.  «  193  U.  S.  621. 


374 


THE  AMERICAN  CONSTITUTION 


[CH. 


Recent  South- 
ern constitu- 
tions. 


Williams  v . 


provide  that  persons  of  foreign  birth  could  vote  without  being 
naturalized,  and,  as  stated  by  Mr.  Chief  Justice  Waite  in  Minor 
v.  Happersett,  21  Wall.  162,  such  persons  were  allowed  to  vote 
in  several  of  the  states  upon  having  declared  their  intention 
to  become  citizens  of  the  United  States.  Some  states  permit 
women  to  vote;  others  refuse  them  that  privilege." 

Such  were  the  powers  and  such  the  disabilities  under  which 
the  Southern  States  acted  in  so  remodeling  their  constitutions 
in  recent  years  as  to  meet  the  aabormal  conditions  arising  out 
of  the  enfranchisement  of  the  freedmen,  who  were  suddenly 
lifted,  without  training  or  probation,  from  a  state  of  servitude 
to  full  citizenship.  No  patriotic  mind  can  ignore  the  gravity 
or  the  peril  of  a  situation  that  has  no  precedent  in  political  his- 
tory. Among  the  Southern  statesmen  who  grappled  with  that 
mighty  problem  stands  preeminent  Senator  George  of  Missis- 
sippi, a  profound  jurist  who,  as  chief  justice  of  his  state,  had 
been  trained  for  the  task.  When  the  fruit  of  his  labors  came  be- 
fore the  Supreme  Court  in  Williams  v.  Mississippi,1  it  appeared 
that  he  had  drafted  a  constitution  in  which  "every  elector 
shall,  in  addition  to  the  foregoing  qualifications,  be  able  to  read 
any  section  of  the  constitution  of  this  state,  or  he  shall  be  able 
to  understand  the  same  when  read  to  him,  or  to  give  a  reason- 
able interpretation  thereof.  ...  No  person  shall  be  a  grand 
or  petit  juror  unless  a  qualified  elector  and  able  to  read  and 
write."  The  complaint  was  that  such  a  constitution  —  which 
it  was  admitted  did  not  "discriminate  in  terms  against  the 
negro  race,  either  as  to  the  elective  franchise  or  the  privilege 
or  duty  of  sitting  on  juries"  —  did  vest  the  power  in  "the  ad- 
ministrative officer  to  determine  whether  the  applicant  reads, 
understands,  or  interprets  the  section  of  the  constitution  de- 
signated. The  officer  is  the  sole  judge  of  the  examination  of 
the  applicant,  and  even  though  the  applicant  be  qualified,  it  is 
left  with  the  officer  to  so  determine;  and  the  said  officer  can 
refuse  him  registration."  Under  such  conditions  the  Court  held 
that  the  equal  protection  of  the  laws  is  not  denied  to  colored 
persons  by  a  state  constitution  and  laws  which  make  no  dis- 
crimination against  the  colored  race  in  terms,  but  which  grant 
a  discretion  to  certain  officers,  which  can  be  used  to  the  abridg- 
ment of  the  right  of  the  colored  persons  to  vote  and  serve  on 
*  170  U.  S.  213  (1898). 


XL]  THE  CIVIL   WAR  AMENDMENTS  375 

juries,  —  when  it  is  not  shown  that  their  actual  administration 
is  evil,  but  only  that  evil  is  possible  under  them. 

A  few  years  later  the  right  of  a  state  to  regulate  the  franchise 
under  a  similar  constitution  came  before  the  Supreme  Court 
in  Giles  v.  Harris,1  in  which  a  bill  was  filed  praying  that  certain  Giles ».  Harris, 
sections  of  the  existing  constitution  of  Alabama  "may  be  de- 
clared contrary  to  the  Fourteenth  and  Fifteenth  Amendments 
to  the  Constitution  of  the  United  States,  and  void."  The  sub- 
stance of  the  sections  complained  of  is  thus  stated  by  the  Court 
itself:  "Before  1903  the  following  male  citizens  of  the  state, 
who  are  citizens  of  the  United  States,  were  entitled  to  register, 
viz :  First.  All  who  had  served  honorably  in  the  enumerated 
wars  of  the  United  States,  including  those  on  either  side  in  the 
'war  between  the  states.'  Second.  All  lawful  descendants  of 
persons  who  served  honorably  in  the  enumerated  wars  or  the 
War  of  the  Revolution.  Third.  'All  persons  who  are  of  good 
character  and  who  understand  the  duties  and  obligations  of 
citizenship   under   a  republican   form   of   government.'  .  .  . 
After  January  I,  1903,  only  the  following  persons  are  entitled 
to  register:  First.  Those  who  can  read  and  write  any  article  of 
the  Constitution  of  the  United  States  in  the  English  language, 
and  who  either  are  physically  unable  to  work  or  have  been 
regularly  engaged  in  some  lawful  business  for  the  greater  part 
of  the  last  twelve  months,  and  those  who  are  unable  to  read 
and  write  solely  because  physically  disabled.  Second.  Owners 
or  husbands  of  owners  of  forty  acres  of  land  in  the  state,  upon 
which  they  reside,  and  owners  or  husbands  of  owners  of  real  and 
personal  estate  in  the  state  assessed  for  taxation  at  $300  or 
more,  if  the  taxes  have  been  paid,  unless  under  protest.   By 
S.  183  only  persons  qualified  as  electors  can  take  part  in  any 
method  of  party  action.   By  S.  184  persons  not  registered  are 
disqualified  from  voting."  As  the  primary  purpose  of  the  bill  Primary 
was  to  require  the  board  of  registrars  to  enroll  upon  the  voting  Purpose  of 
lists  the  plaintiff  and  a  large  number  of  other  colored  men,  who 
had  applied  for  registration  before  August  I,  1902,  the  Federal 
Circuit  Court  dismissed  it  for  want  of  jurisdiction,  and  the 
Supreme  Court  affirmed  the  decree  upon  the  ground  that 
equity  will  not  compel  a  county  board  of  registrars  to  enroll  a 
colored  man  on  the  voting  lists  as  a  duly  qualified  voter,  under 
i  189  U.  S.  474  (1903). 


376 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Industrial 
education. 


Solution  of 
race  problem. 


the  registration  provisions  of  the  Alabama  Constitution,  Article 
vin,  where  the  main  object  of  the  bill  is  to  have  these  regis- 
tration provisions,  upon  which  the  right  to  register  is  founded, 
declared  void  as  a  fraud  upon  the  Federal  Constitution  be- 
cause of  discrimination  against  negroes,  since,  if  that  is  the 
character  of  these  provisions,  the  Court  will  not  require  officials 
to  proceed  to  act  under  them. 

As  a  citizen  of  Alabama  the  author  is  proud  of  the  noble  re- 
cord his  state  has  made  in  the  work  of  uplifting  her  colored  pop- 
ulation and  preparing  them,  through  industrial  education,  for 
the  duties  of  full  citizenship.  As  the  head  of  one  of  her  normal 
schools  Booker  T.  Washington  began  and  has  continued  that 
worthy  and  remarkable  career  as  a  promoter  of  industrial  edu- 
cation which  has  been  applauded  by  all  good  men.  In  the  en- 
couragement and  assistance  that  has  come  to  him  from  the 
North  the  hands  of  both  sections  have  been  clasped  in  advanc- 
ing the  only  process  through  which  the  race  problem  can  be 
finally  solved.  Born  and  reared  in  the  midst  of  a  colored  popu- 
lation, the  author  knows  that  they  are  not  lacking  in  the  ele- 
ments upon  which  good  citizenship  must  be  founded.  Their 
conduct  during  the  Civil  War  is  an  enduring  memorial  to  their 
fidelity,  while  the  steady  advance  of  many  of  them  as  mechan- 
ics and  small  farmers  proves  that  they  are  capable  of  thrift  and 
industry.  By  just  treatment,  encouragement,  and  education 
they  should  be  helped  along  the  path  to  good  citizenship.  For 
many  years  such  a  work  has  been  advancing  hopefully  in  the 
County  of  Mobile,  where  an  admirable  public  school  system, 
supported  almost  entirely  by  taxes  paid  by  the  white  popula- 
tion, has  divided  almost  equally  its  benefits  with  the  children 
of  the  colored  people. 


CHAPTER  XII 

OUR  COLONIAL  SYSTEM  AND  THE  MONROE  DOCTRINE 

To  the  Greek  mind  the  state,  as  the  city-commonwealth,  was  Relation  of  a 
an  organized  society  of  men  dwelling  in  a  walled  city,  with  a 
surrounding  territory  not  too  large  to  permit  its  free  inhabit- 
ants habitually  to  assemble  within  its  limits  to  discharge  the 
duties  of  citizens.  1  When  a  conquering  city  extended  its  domin- 
ions by  reducing  other  self-governing  cities  to  the  condition  of 
dependent  allies,  such  allies  were  often  permitted  to  enjoy  local 
autonomy  under  their  own  constitutions,  without  the  right  to 
participate  in  any  way  in  the  political  affairs  of  the  ruling  state 
by  whose  assembly  the  foreign  relations  of  the  alliance,  if  alli- 
ance it  may  be  called,  were  absolutely  controlled.  The  most 
favored  members  of  the  Athenian  Alliance  or  Empire,  even 
Chios  or  Mitylene,  could  not  have  a  voice  in  the  general  direc- 
tion of  the  confederacy,  for  the  simple  reason  that  Greek  ex- 
clusiveness  rejected  to  the  last  the  idea  of  a  fusion  of  any  large 
number  of  cities  into  a  single  body  with  equal  rights  common 
to  all.  As  the  state  was  the  city,  those  who  went  out  of  the  city 
went  out  of  the  state.  Therefore  according  to  Greek  ideas,  the 
effect  of  an  emigration  for  the  formation  of  a  new  settlement 
was  an  absolute  political  severance  from  the  mother  state, 
which  retained  no  more  substantial  hold  upon  its  colonies  than 
the  sentimental  tie  arising  out  of  the  community  of  blood  and 
speech  and  common  religious  rights.  Rome's  relation  to  her  Relation  of  a 
colonies  was  entirely  different,  because  no  Roman  colony  was 
ever  formed  without  the  sanction  and  direction  of  the  public 
authority.  While  the  Colonia  Romana  differed  from  the  Colo- 
ma  Latina,  in  that  the  former  permitted  its  members  to  retain 
their  political  rights  intact,  the  colony,  whether  planted  within 


1  Aristotle  thought  that  a  state  'Avayicaiov    yvwptfriv    dXXiJXow,    irotbf 

should  not  be  so  large  as  to  deny  ™&  et<rt,  rote  iroXfras.  Pol.,  bk.  vii, 

to  its   citizens  the  opportunity  to  ch.  iv,  13. 
become  familiar  with  each   other. 


378 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Modern  con- 
ception of  the 
state  as  nation. 


Colonies  of 
states  of  the 
new  type. 


A  colonial 
system  of 
complete 
monopoly. 


the  bounds  of  Italy  or  in  provinces  like  Britain  or  Gaul,  re- 
mained an  integral  part  of  the  Roman  dominion.1 

The  ancient  conception  of  the  state  as  the  city-common- 
wealth gave  way  to  the  modern  conception  of  the  state  as  the 
nation,  —  an  aggregation  of  people  occupying  a  definite  por- 
tion of  the  earth's  surface  with  fixed  geographical  boundaries, 
the  state  as  known  to  modern  international  law.  That  new 
creation  was  the  outcome  of  the  "process  of  feudalization " 
through  which  the  Teutonic  nations  passed,  after  their  settle- 
ments within  the  limits  of  the  Roman  Empire.  The  kings  of 
the  states  that  rose  out  of  the  wreck  of  the  empire  of  Charles 
the  Great  were  kings  in  the  new  territorial  sense,  who  stood 
to  the  lands  over  which  they  ruled  as  a  baron  to  his  estate, 
a  tenant  to  his  freehold.  The  form  assumed  by  the  monarchy 
in  France  was  reproduced  in  each  subsequent  dominion  estab- 
lished or  consolidated,  and  thus  has  arisen  the  state  system  of 
modern  Europe,  in  which  the  idea  of  territorial  sovereignty  is 
the  basis  of  all  international  relations.  When  the  time  came 
for  states  of  the  new  type  to  send  out  bands  of  emigrants  to 
found  colonies  in  distant  lands,  an  entirely  new  conception  of 
the  relation  that  should  bind  such  colonies  to  the  mother  state 
came  into  existence.  Instead  of  the  emigrants  leaving  the 
mother  state  behind  them,  they  were  supposed  to  take  it  upon 
their  backs.  "The  notion  was,  where  Englishmen  are,  there 
is  England,  where  Frenchmen  are,  there  is  France;  and  so  the 
possessions  of  France  in  North  America  were  called  New  France, 
and  one  group  at  least  of  the  English  possessions  New  Eng- 
land." 2  On  that  principle  all  the  western  hemisphere  passed 
under  the  control  of  a  colonial  system  of  complete  monopoly 
by  mother  countries,  and  as  a  general  rule  was  excluded  from 
direct  communication  with  Europe,  outside  of  the  respective 
parent  states.  As  colonies  were  a  part  of  the  mother  coun- 
try and  yet  transoceanic  with  reference  to  her,  maritime 
commerce  between  them  and  foreign  communities  could  by 
direct  legislation  be  obliged  first  to  seek  the  parent  state, 

1  Roman  colonies  thus  extended  able  as  propugnacula  of  the  state, 

the  language  and  laws  of  Rome  over  as   permanent   supports  to  Roman 

wide  areas,  inoculating  the  inhab-  garrisons  and  armies, 
itants  of  the  provinces  with  more          2  Seeley,  The  Expansion  of  Eng- 

than  the  rudiments  of  Roman  civil-  land,  49. 
ization.  They  were  not  merely  valu- 


XII.]  OUR  COLONIAL  SYSTEM  379 

which  thus  was  made  the  distributing  centre  for  both  new  ex- 
ports and  imports.  By  the  middle  of  the  seventeenth  century 
the  idea  that  Great  Britain  must  dominate  upon  the  sea  had 
assumed  such  clear  and  definite  form  as  to  find  expression  in 
a  series  of  measures  generally  known  as  the  Navigation  Acts, 
the  first  of  which  was  passed  in  1651,  during  Cromwell's  Pro-  Adam  Smith 
tectorate.  From  Adam  Smith  we  learn  that  "the  defense  of  tkmActslrf" 
Great  Britain,  for  example,  depends  very  much  upon  the  1651. 
number  of  its  sailors  and  shipping.  The  Act  of  Navigation 
therefore  very  properly  endeavors  to  give  the  sailors  and  ship- 
ping of  Great  Britain  the  monopoly  of  the  trade  of  their  own 
country.  .  .  .  The  Act  is  not  favorable  to  foreign  commerce, 
nor  to  the  opulence  which  can  arise  from  that ;  but  defense  is 
of  much  more  importance  than  opulence.  The  Act  of  Navi- 
gation is  perhaps  the  wisest  of  all  the  commercial  regulations 
of  England."  l  A  great  thinker  of  our  own  has  said  that  "the  Captain 
ninth  of  October,  1651,  is  the  date  of  the  passing  of  the  Act,  Jfew!"1 
the  general  terms  of  which  set  for  two  hundred  years  the 
standard  for  British  legislation  concerning  the  shipping  in- 
dustry. The  title  of  the  measure,  'Goods  from  foreign  ports, 
by  whom  to  be  imported,'  indicated  at  once  that  the  object  in 
view  was  the  carrying  trade ;  navigation,  rather  than  commerce. 
Commerce  was  to  be  manipulated  and  forced  into  English  bot- 
toms as  an  indispensable  agency  for  reaching  British  consum- 
ers. At  this  time  less  than  half  a  century  had  elapsed  since  the 
first  English  colonists  had  settled  in  Massachusetts  and  Vir- 
ginia. The  British  plantation  system  was  still  in  its  beginnings 
alike  in  America,  Asia,  and  Africa."2 

The  history  of  modern  colonization  on  a  large  scale  begins  Spain  as  a 
with  the  Spanish  conquests  in  America,  where  from  the  outset  colomzer- 
the  sovereign  was  regarded  as  the  fountain  of  all  authority. 
An  almost  regal  and  absolute  power  was  vested  by  special 
grants  from  the  King  in  the  persons  sent  to  found  the  first  gov- 
ernments in  the  New  World.  The  India  House  at  Seville 3  (Casa 

1  Inquiry   into    the    Nature    and  *  In  order  to  enable  it  to  super- 
Causes    of  the    Wealth   of  Nations  intend  more  conveniently  the  ship- 
Rogers  ed.),  Oxford,  1880,  35-38.  ping   to   America,  the    Casa  de  la 
See  also  178.  Contratacion    was     transferred    to 

2  Mahan,  Sea  Power  in  its  Rela-  Cadiz  in  1717. 
tions  to  the  War  of  1812,  i,  14.   See 

also,  9-11,  and  23  sq. 


THE  AMERICAN  CONSTITUTION 


[CH. 


Siete  Partidas. 


Oppression 
of  colonists. 


England  as 
a  colonizer. 


Great  title-deed 
of  April  10, 
1606. 


de  la  Contratacion) ,  established  by  an  ordinance  of  1503,  with 
authority  to  grant  licenses,  to  dispatch  fleets,  and  to  dispose 
of  the  results  of  trade  and  exploration,  became  subordinate  to 
the  Council  of  the  Indies,  created  by  Ferdinand  in  1511  and 
fully  organized  by  Charles  V  in  1524.  The  basis  of  the  entire 
fabric  was  Spanish  law,  in  the  form  that  law  had  assumed  after 
its  codification  in  the  Siete  Partidas,  which  became  funda- 
mental in  the  colonies  as  in  the  mother  country.  Upon  that 
general  basis  law  was  administered,  subject  to  such  local  regu- 
lations and  decrees  as  were  promulgated  by  the  Council  of  the 
Indies,  whose  bungling  and  often  corrupt  legislation  soon  filled 
its  records  with  masses  of  contradictory  and  useless  ordinances. 
Spain's  colonial  system,  more  paternal  than  that  of  England, 
retained  in  her  hands  the  whole  trade  of  the  colonies,  and 
guarded  her  monopoly  with  the  severest  penalties.  The  colon- 
ists, who  were  compelled  to  root  up  their  vines  and  olives,  were 
not  allowed  to  raise  or  manufacture  any  article  the  mother 
country  could  supply.  The  prices  of  all  European  commodities 
were  enhanced  three,  four,  or  even  six  fold.  It  was  a  vital 
part  of  that  policy  to  bestow  upon  natives  of  the  Peninsula 
all  offices,  from  the  highest  to  the  lowest,  in  order  to  create 
an  official  and  privileged  caste,  distinct  from  the  people  in 
feelings  and  interests. 

While  England  was  the  last  of  the  states  of  the  new  type  to 
enter  upon  the  work  of  colonization,  she  has  been  able  to  give 
it  a  wider  extension  than  any  of  her  competitors.  According 
to  the  theory  of  the  English  Constitution,  the  title  to  all  newly 
discovered  lands  accrued  to  the  King  in  his  public  and  regal 
character,  and  the  exclusive  right  to  grant  them  resided  in  him 
as  a  part  of  the  royal  prerogative;  "upon  these  principles  rest 
the  various  charters  and  grants  of  territory  made  on  this  con- 
tinent." *  The  great  title-deed  under  which  the  English  settlers 
in  America  took  actual  and  permanent  possession  of  the  greater 
part  of  the  Atlantic  seaboard  is  represented  by  the  charter 
granted  by  James  I,  April  10,  1606,  creating  two  distinct  cor- 
porations as  colonizing  agents.  "Within  the  period  of  ten 
years,  under  the  last  of  the  Tudors  and  the  first  of  the  Stuarts, 
two  trading  charters  were  issued  to  two  companies  of  English 
adventurers.  One  of  these  charters  is  the  root  of  English  title 
1  Taney,  C.  J.,  in  Martin  et  al.  v.  The  Lessee  of  Waddell,  16  Peters,  409. 


XII.]  OUR  COLONIAL  SYSTEM  381 

to  the  East  and  the  other  to  the  West.   One  of  these  companies 
has  grown  into  the  Empire  of  India;  the  other  into  the  United 
States  of  North  America."1  In  the  latter  it  was  declared  "that 
all  and  every  the  persons,  being  our  subjects  which  shall  go  and  its  terms  as 
inhabit  within  the  said  colony  and  plantation,  and  every  their  to  QtlzenshiP- 
children  and  posterity,  which  shall  happen  to  be  born  within 
any  of  the  limits  thereof,  shall  have  and  enjoy  all  liberties,  fran- 
chises, and  immunities  of  free  denizens  and  natural  subjects 
within  any  of  our  other  dominions,  to  all  intents  and  purposes 
as  if  they  had  been  abiding  and  born  within  this  our  realm  of 
England  or  in  any  other  of  our  dominions."   It  is  not  therefore 
strange  that,  under  the  principles  of  the  English  Constitution, 
a  country  subdued  by  an  army  of  the  Empire  becomes  immed- 
iately a  part  of  the  King's  dominions  in  right  of  his  crown,  and 
its  inhabitants,  so  soon  as  they  pass  under  the  King's  protec- 
tion, cease  to  be  enemies  or  aliens  and  become  subjects.   In  a 
word,  foreign  territory  becomes  a  part  of  the  British  Empire  Effect  of 
and  its  inhabitants  British  subjects,  both  as  to  the  conquering  c011^11631- 
state  and  foreign  nations,  ipso  facto,  by  the  conquest  itself, 
without  any  enabling  or  confirming  legislation  upon  the  part 
of  the  Imperial  Parliament.  As  Lord  Coke  declared  in  Cal-  Calvirfscase. 
vin's  case,  "they  that  were  born  in  those  parts  of  France  that 
were  under  actual  ligeance  and  obedience  were  no  aliens,  but 
capable  of,  and  heritable  to,  lands  in  England." 2 

The  liberality  with  which  the  English  Constitution  thus  be-  Colonists  de- 
stows  citizenship  and  legal  rights  upon  those  under  its  domin-  ^li 
ion  in  foreign  lands  has  ever  been  more  than  offset  by  the  ex-  assembly. 
elusive  spirit,  sanctioned  by  all  the  precedents  of  the  past,  that 
denies  to  all  colonists  the  right  to  representation  in  the  sover- 
eign assembly  at  home  which  directs  the  affairs  of  the  Empire 
as  a  whole.  That  assembly,  while  denying  to  all  colonists,  as 
every  other  home  assembly  had  denied,  the  boon  of  being  heard 
through  their  representatives,  has  ever  claimed  the  right  to  in- 
vade the  jurisdiction  of  all  colonial  assemblies  in  order  to  legis- 
late directly  upon  internal  colonial  concerns.   In  the  hands  of 
a  practical,  tax-loving  statesman  like  Grenville,  that  claim  was 
not  confined  to  mere  supervision ;  in  such  hands,  it  was  held  to 

1  Bryce,  American  Commonwealth,       status  of  the  post-nati,  cf.  Origin  and 
i,  430.  Growth  of  the  English  Constitution,  ii, 

8  State  Trials,  ii,  559.   As  to  the       227-229. 


382 


THE  AMERICAN  CONSTITUTION 


[CH. 


Cause  of 
War  of  the 
Revolution. 


Our  denial  of 
representation 
to  colonists. 


Scheme 
embodied  in 
Ordinance 
of  1787. 


Jefferson  head 
of  committee. 


mean  that  the  Imperial  Parliament  could  at  any  moment  over- 
ride the  acts  of  the  colonial  assemblies,  without  consulting  their 
wishes  at  all,  and  tax  and  legislate  for  the  people  of  Massachu- 
setts and  Virginia  just  as  it  could  for  the  people  of  Kent  and 
Middlesex.  Out  of  the  conflict  that  finally  arose  between  the 
English  and  colonial  theories,  as  to  the  practical  omnipotence 
of  the  Imperial  Parliament  over  self-governing  communities 
beyond  the  four  seas,  grew  the  War  of  the  Revolution,  and  the 
severance  of  the  English  colonies  in  America  from  the  mother 
state. 

When  the  time  came  for  this  nation  to  establish  a  colonial 
system  it  revived  that  exclusive  spirit,  as  old  as  civilization 
itself,  which  denies  to  colonists  the  right  to  speak  through  re- 
presentatives in  the  assembly  of  the  mother  state.  The  signing 
of  the  first  Federal  Constitution,  embodied  in  the  Articles  of 
Confederation,  was  not  completed  until  March  I,  1781,  when 
Maryland  finally  gave  it  her  adhesion,  after  it  was  settled  that 
the  new  nationality  was  to  become  the  sovereign  possessor  of 
"the  whole  Northwestern  Territory  —  the  area  of  the  great 
states  of  Michigan,  Wisconsin,  Illinois,  Indiana,  and  Ohio  (ex- 
cepting the  Connecticut  Reserve),"  l  which,  under  the  Articles 
of  Confederation,  it  had  no  express  right  either  to  hold  or 
govern.  Notwithstanding  that  fact,  Congress,  acting  under 
authority  clearly  implied,  boldly  entered  upon  the  scheme  of 
colonial  or  territorial  government  embodied  in  the  Ordinance 
of  1787  for  the  government  of  the  Northwest  Territory.  In  de- 
scribing that  famous  enactment,  an  eminent  American  histor- 
ian has  said:  "It  was  our  first  effort  at  colonial  government, 
our  first  attempt  to  rule  a  community  not  fit -to  become  a  state 
and  enter  the  Union ;  and  by  it  a  new  political  institution,  the 
territory,  was  created  in  two  grades.  At  the  head  of  the  com- 
mittee which  reported  the  Ordinance  was  the  apostle  of  liberty, 
the  father  of  the  American  democracy,  the  man  who  wrote  the 
Declaration  of  Independence.  If  one  member  more  than  an- 
other of  that  committee  was  bound  to  carry  out  the  principles 
of  the  Declaration  and  seek  to  establish  a  government  in  strict 
accordance  with  them,  that  member  was  Jefferson.  If  any  one 
man  more  than  another  could  be  pardoned  for  attempting  to 
carry  the  self-evident  truth  to  an  extreme,  Jefferson  was  that 
1  Fiske,  The  Critical  Period,  194. 


XII.]  OUR  COLONIAL  SYSTEM  383 

man.  Yet  not  for  a  moment  was  he  led  astray  by  the  ideals  he 
had  announced  to  the  world  as  the  true  basis  of  democratic 
government.  He  and  his  fellow  members  knew  well  that  no 
popular  government  can  stand  long  or  accomplish  much  for  the 
good  of  the  governed  which  is  not  carefully  adjusted  to  the 
wants,  conditions,  and  intelligence  of  the  people  who  are  to  live 
under  it.  The  plan  presented  and  adopted,  therefore,  did  not 
contain  one  vestige  of  self-government  till  there  were  five  No  self-govern- 
thousand  free  white  males  living  in  the  territory,  and  this  in  ment  at  outset 
spite  of  the  fact  that  the  great  majority  of  them  would  be  citi- 
zens from  the  seaboard  states,  and  well  accustomed  to  self-gov- 
ernment. .  .  .  The  clear  distinctions  between  the  state  and  a  Distinctions 
territory,  thus  drawn  at  the  very  outset  of  our  career,  and  the 
principles  then  established  —  that  Congress  was  free  to  govern 
the  dependencies  of  the  United  States  in  such  a  manner  as  it 
saw  fit ;  that  the  government  it  granted  need  not  be  republi- 
can, even  in  form;  that  men  might  be  taxed  without  any  repre- 
sentation in  the  taxing  body,  stripped  absolutely  of  the  fran- 
chise, and  ruled  by  officials  not  of  their  own  choice,  have  never 
been  departed  from,  and  have  often  been  signally  confirmed."1 
In  a  word,  Jefferson  was  as  hostile  to  the  idea  that  the  colonists 
who  grouped  themselves  in  the  territories  of  the  United  States  Agreement 
were  entitled,  while  in  that  condition  of  probation,  to  the  full  Between 
benefits  of  our  Federal  Constitution,  as  Grenville  ever  was  to  Grenville. 
the  idea  that  the  English  colonists  in  America  were  entitled 
to  the  full  benefits  of  the  Constitution  of  the  mother  country. 
When  the  opportunity  was  presented  to  Jefferson  to  design 
a  system  of  colonial  or  territorial  government  for  inhabitants 
of  contiguous  territory,  drawn  in  the  main  from  the  seaboard 
states,  he  was  unwilling  to  concede  representative  government 
at  all  until  there  were  at  least  five  thousand  free  white  males 
living  in  the  territory.  When  the  settlers  reached  that  num- 
ber, any  free  white  man  who  had  resided  there  the  proper  time, 
and  who  owned  fifty  acres,  might  take  part  in  the  election  of  a 
House  of  Representatives,  every  member  of  which  must  be  pos- 
sessed of  a  freehold  of  two  hundred  acres.  Such  House  when 
assembled  was  authorized  to  nominate  ten  men,  each  possessed 
of  a  freehold  of  five  hundred  acres,  of  whom  the  President  was 
required  to  commission  five  as  legislative  councillors.  The 
1  Prof.  J.  B.  McMaster,  in  The  Forum  of  December,  1898. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Original 
scheme 
standard  for 
imitation. 


A  fanciful 
outcry. 

Purchase  of 

Louisiana, 

1803. 


Territory 
of  Orleans. 


House  and  Council  so  constituted  could  by  joint  ballot  choose 
a  delegate  to  represent  the  territory  in  the  national  House  of 
Representatives,  where  he  was  permitted  to  speak,  but  not  to 
vote.  This  oligarchical  form  of  territorial  government,  created 
by  the  Continental  Congress,  and  adopted  by  the  First  Con- 
gress under  the  Constitution,  became  the  standard  after  which 
all  others  since  established  have  been  closely  modeled.  Jeffer- 
son, with  the  words  of  the  Declaration  of  Independence  fresh 
upon  his  lips,  was  no  more  inclined  to  extend  the  national  Con- 
stitution, the  special  possession  of  fully  organized  states,  to  his 
brethren  settled  in  our  colonies  or  territories,  than  was  Peri- 
cles to  extend  the  Constitution  of  Athens  to  Chios  or  Mity- 
lene,  or  Grenville  the  Constitution  of  England  to  the  colonists 
settled  along  our  Atlantic  seaboard.  It  never  occurred  to  Peri- 
cles, Grenville,  or  Jefferson  that  the  principles  of  human  right 
demanded  or  justified  such  an  extension.  That  idea,  which 
finds  no  support  in  the  world's  past  history,  first  found  expres- 
sion in  the  baseless  and  fanciful  outcry  that  "the  Constitution 
follows  the  flag." 

Strange  it  is  indeed  that  the  makers  of  the  existing  Constitu- 
tion should  have  dismissed  the  vast  subject  involved  in  the  ac- 
quisition and  government  of  colonies  or  territories  with  the 
brief  provision  contained  in  Article  iv,  Section  3,  to  the  effect 
that  "the  Congress  shall  have  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  and 
other  property  of  the  United  States."  When,  in  1803,  Jefferson 
was  confronted  with  the  lack  of  express  power  to  purchase 
Louisiana,  he  fell  back,  after  a  momentary  hesitation,  upon  the 
implied  power  necessarily  incident  to  the  nature  of  the  govern- 
ment itself.  After  that  vast  and  indefinite  domain  was  taken 
from  Napoleon  for  a  song,  it  was  divided;  and  a  part,  corre- 
sponding very  nearly  to  the  present  State  of  Louisiana,  was 
called  the  "Territory  of  Orleans."  To  the  new  territory  thus 
formed  an  oligarchical  form  of  government  was  given  by  Con- 
gress but  little  in  advance  of  that  devised  in  the  first  instance 
by  Jefferson  for  the  Northwest  Territory.  Even  the  right  of 
trial  by  jury  was  conceded  with  a  serious  restriction.  During 
the  debate  on  the  treaty  under  which  Louisiana  was  purchased, 
the  question  was  raised  that  a  discrimination  was  made  in 
favor  of  New  Orleans  as  against  Charleston  or  New  York,  by 


XII.]  OUR  COLONIAL  SYSTEM  385 

the  provision  which  permitted  ships  coming  from  France  or 
Spain  to  enter  the  ports  of  Louisiana,  during  a  period  of  twelve 
years,  without  paying  more  duty  than  was  exacted  from 
vessels  belonging  to  citizens  of  the  United  States.  Such  a  dis-  Territorial 
crimination,  it  was  said,  conflicted  with  Article  I,  Section  9,  of  poris' 
the  Constitution,  which  provides  that  "no  preference  shall  be 
given  by  any  regulation  of  commerce  or  revenue  to  the  ports 
of  one  state  over  those  of  another."  The  short  and  conclusive 
answer  to  that  objection  was  that,  as  the  prohibition  in  ques- 
tion related  only  to  the  states  and  not  to  the  territories,  any 
preference  that  might  be  given  to  the  port  of  Louisiana  was 
not  invalid,  because  Louisiana  was  a  territory  and  not  a  state.1 

When  for  a  second  time  our  domain  was  widened  by  the  ac-  Florida  pur- 
quisition  of  Florida,  under  the  treaty  with  Spain  ratified  Octo-  chase» l820- 
ber  20,  1820,  Congress,  again  refusing  to  extend  the  consti- 
tutional guarantees  to  a  territory,  gave  to  the  new  acquisition 
in  1822  substantially  the  same  form  of  government  provided 
for  Orleans  in  1804.  In  the  case  of  the  American  Ins.  Co.  v.  356 
Bales  of  Cotton,2  the  question  was  presented  to  the  Supreme 
Court  whether  or  no  that  part  of  the  territorial  government 
providing  that  the  judges  of  the  Superior  Court  of  Florida 
should  hold  their  offices  for  four  years  conflicted  with  that  pro- 
vision of  the  Constitution  declaring  that  "the  judges  of  the 
supreme  and  inferior  courts  shall  hold  their  offices  during  good 
behavior."  In  delivering  the  opinion,  Chief  Justice  Marshall  Tenure  of  ter- 
said  that  the  Court ' '  should  take  into  view  the  relation  in  which  ritorial  J^68- 
Florida  stands  to  the  United  States" ;  that  territory  ceded  by 
treaty  "becomes  a  part  of  the  nation  to  which  it  is  annexed, 
either  on  the  terms  stipulated  in  the  treaty  of  cession,  or  on 
such  as  its  new  master  shall  impose."  He  further  held  that 
the  judicial  clause  in  question  had  no  application  whatever 
to  the  organization  of  territorial  courts,  because  Florida,  upon 
the  conclusion  of  the  treaty,  became  a  territory  of  the  United 
States,  and  subject  to  the  power  of  Congress  legislating  under 
the  territorial  clause,  and  entirely  outside  of  the  constitutional 
guarantees  which  belong  to  the  states  alone. 

1  Speaking   for   the  Administra-  regulated  without  any  reference  to 

tion,  Mr.  Nicholson  of   Maryland  the   Constitution."   See  Downes  v. 

said:   "[Louisiana]  is  in  the  nature  Bidwell,  182  U.  S.  255. 
of  a  colony  whose  commerce  may  be  8  I  Peters,  511. 


386 

Treaty  of 
Guadalupe- 
Hidalgo,  1848. 


THE  AMERICAN  CONSTITUTION 


[CH. 


Webster  and 
Clay  declare 
Constitution 
belongs  to 
states  alone. 


Taney  in  Flem- 
ing v.  Page. 


When  for  a  third  time  our  domain  was  widened  by  the 
acquisition,  in  1848,  under  the  treaty  of  Guadalupe-Hidalgo,  of 
the  vast  region  inhabited  by  people  of  mixed  races,  with  laws 
and  customs  unlike  our  own,  the  problem  of  territorial  govern- 
ment became  entangled  with  an  effort  to  extend  the  limits 
within  which  slavery  could  be  maintained.  In  the  course  of  the 
debate  that  ensued  on  an  amendment  to  a  certain  bill  offering 
to  extend  the  Constitution  and  certain  laws  of  the  United 
States  over  the  proposed  territories  of  Utah  and  New  Mexico, 
a  scene  occurred  of  which  Mr.  Benton1  gives  us  the  following 
description:  "The  novelty  and  strangeness  of  this  proposition 
called  up  Mr.  Webster,  who  repulsed  as  an  absurdity  and  an 
impossibility  the  scheme  of  extending  the  Constitution  to  the 
territories,  declaring  that  instrument  to  have  been  made  for 
states,  not  territories;  that  Congress  governed  the  territories 
independently  of  the  Constitution  and  incompatibly  with  it; 
that  no  part  of  it  went  to  a  territory  but  what  Congress  chose 
to  send ;  that  it  could  not  act  of  itself  anywhere,  not  even  in  the 
states  for  which  it  was  made,  and  that  it  required  an  act  of 
Congress  to  put  it  in  operation  before  it  had  effect  anywhere. 
Mr.  Clay  was  of  the  same  opinion,  and  added :  '  Now,  really  I 
must  say  the  idea  that,  eo  instanti,  upon  the  consummation  of 
the  treaty,  the  Constitution  of  the  United  States  spread  itself 
over  the  acquired  territory  and  carried  along  with  it  the  insti- 
tution of  slavery,  is  so  irreconcilable  with  any  comprehension 
or  any  reason  I  possess,  that  I  hardly  know  how  to  meet  it. ' ' 

In  1850,  the  year  following  that  in  which  the  foregoing  de- 
bate occurred,  the  Supreme  Court  delivered  its  judgment  in 
Fleming  v.  Page,2  a  case  arising  out  of  an  action  brought  against 
the  collector  of  the  port  of  Philadelphia  to  recover  back  cer- 
tain duties  on  merchandise  imported  into  that  port  from  Tam- 
pico,  in  Mexico,  during  the  temporary  occupation  of  that  place 
by  the  military  forces  of  the  United  States.  The  substance  of 
the  opinion,  delivered  by  Chief  Justice  Taney,  is  as  follows: 
"The  President  acted  as  a  military  commander  prosecuting  a 
war  waged  against  a  public  enemy  by  the  authority  of  his  gov- 
ernment, and  the  conquered  country  was  held  in  possession  in 
order  to  distress  and  harass  the  enemy.  It  did  not  thereby  be- 
come a  part  of  the  Union.  The  boundaries  of  the  United  States 
1  Thirty  Years'  View,  ii,  72955.  2  9  Howard,  603. 


XII.]  OUR  COLONIAL  SYSTEM  387 

were  not  extended  by  the  conquest.  Tampico  was  therefore  a  Tampfco  a 
foreign  port,  within  the  meaning  of  the  Act  of  Congress  passed 
on  the  3Oth  of  July,  1846,  and  duties  were  properly  levied 
upon  goods  imported  into  the  United  States  from  Tampico. 
The  administrative  departments  of  the  government  have  never 
recognized  a  place  in  a  newly  acquired  country  as  a  domestic 
port,  from  which  the  coasting  trade  might  be  carried  on,  un- 
less it  had  been  previously  made  so  by  an  Act  of  Congress,  and 
the  principle  thus  adopted  has  always  been  sanctioned  by  the 
Circuit  Courts  of  the  United  States,  and  by  this  Court."  By 
that  time  the  following  propositions  had  become  firmly  settled 
in  the  constitutional  law  of  this  country:  (i)  That  when  terri-  Summary  of 
tory  is  subdued  by  the  armies  of  the  United  States,  it  passes  j^JJf !t 
under  the  despotic  war  power  of  the  President,  as  Commander- 
in-Chief,  who,  in  the  exercise  of  that  power,  is  unrestrained  by 
the  Constitution  and  the  laws  of  the  United  States;  (2)  that 
when  territory  is  thus  acquired  by  conquest,  its  holding  is  a 
mere  military  occupation  until,  by  a  treaty  of  peace,  the  ac- 
quisition is  confirmed ;  (3)  that  when  the  new  acquisition  passes 
into  a  territorial  condition,  the  despotic  war  power  vested  in 
the  President,  as  Commander-in-Chief,  is  superseded  by  the 
power  of  Congress,  which  is  equally  unlimited,  except  as  to 
such  constitutional  "provisions  as  go  to  the  very  root  of  the 
power  of  Congress  to  act  at  all,  irrespective  of  time  or  place" ; 
(4)  that  until  the  ceded  territory  is  admitted  as  a  state,  it  is 
not  drawn  within  the  circle  of  constitutional  guarantees  which 
apply,  in  their  entirety,  to  states  alone.  When  in  1879  it  again 
became  necessary  to  determine  the  extent  to  which  the  Con- 
stitution applies  to  a  territory,  the  Supreme  Court,  in  First 
National  Bank  of  Brunswick  v.  County  of  Yankton,1  speaking 
through  Chief  Justice  Waite,  thus  answered:  "The  territories  Chief  justice 
are  but  political  subdivisions  of  the  outlying  dominion  of  the  Waite's  view- 
United  States.  They  bear  much  the  same  relation  to  the  Gen- 
eral Government  that  counties  do  to  the  states,  and  Congress 
may  legislate  for  them  as  states  do  for  their  respective  municipal 
organizations.  The  organic  law  of  a  territory  takes  the  place 
of  a  constitution,  as  the  fundamental  law  of  the  local  govern- 
ment. It  is  obligatory  on  and  binds  the  territorial  authorities; 
but  Congress  is  supreme,  and,  for  purposes  of  this  department 
1  101  U.  S.  129. 


388 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Insular  Tariff 
cases. 


DeLima  v. 
Bidwell. 


Downes  v. 
BidwelL 


Limitations 
on  power  of 
Congress  to 
act  at  all. 


of  its  governmental  authority,  has  all  the  powers  of  the  people 
of  the  United  States,  except  such  as  have  been  expressly  or  by 
implication  reserved  in  the  prohibitions  of  the  Constitution." 

With  all  the  fundamentals  thus  clearly  defined  in  harmony 
with  the  past  history  of  the  world  as  to  the  relation  of  colonies 
to  the  constitution  of  the  parent  state,  there  was  really  no 
occasion  for  the  great  forensic  contest  and  subsequent  conflict 
among  the  judges  which  assumed  such  large  proportions  in 
what  are  known  as  the  Insular  Tariff  cases,1  the  most  import- 
ant of  which  are  DeLima  v.  Bidwell  and  Downes  v.  Bidwell. 
In  the  first,  the  question  was  this :  Was  the  island  of  Porto 
Rico,  after  the  treaty  with  Spain  for  the  transfer  of  sover- 
eignty had  been  ratified  and  proclaimed,  and  prior  to  any 
action  by  Congress  in  regard  to  the  island,  a  part  of  the  terri- 
tory of  the  United  States,  and  subject  to  that  provision  of 
the  Constitution  which  declares  that  "all  duties,  imports  and 
excises  shall  be  uniform  throughout  the  United  States"?  It 
was  held  that,  at  the  time  the  duties  in  question  were  levied, 
"Porto  Rico  was  not  a  foreign  country,  within  the  mean- 
ing of  the  tariff  laws,  but  a  territory  of  the  United  States; 
that  the  duties  were  illegally  exacted,  and  that  the  plaintiffs 
are  entitled  to  recover  them  back."  In  the  second,  the  same 
question  arose,  after  the  passage,  on  April  12,  1900,  of  the 
Foraker  Act,  which  provided  for  a  territorial  government  in 
Porto  Rico  and  levied  a  duty  upon  such  products  of  the 
island  as  might  be  brought  into  the  United  States.  When  the 
question  of  the  validity  of  the  duty  so  imposed  arose,  it  was 
held  to  be  valid,  regardless  of  the  uniformity  clause  of  the  Con- 
stitution, because,  in  the  opinion  of  Mr.  Justice  Brown,  who 
delivered  the  judgment,  the  Constitution  does  not,  by  its  own 
force,  extend  to  the  possessions  of  the  United  States,  whether 
created  into  territories  with  a  regular  form  of  government,  or 
existing  as  unorganized  possessions.  As  a  qualification  of  that 
statement,  that  ever  sane  and  luminous  judge  said:  "To  sus- 
tain the  judgment  in  the  case  under  consideration,  it  by  no 
means  becomes  necessary  to  show  that  none  of  the  articles  of 
the  Constitution  apply  to  the  island  of  Porto  Rico.  There  is 
a  clear  distinction  between  such  prohibitions  as  go  to  the  very 
root  of  the  power  of  Congress  to  act  at  all,  irrespective  of  time 
1  182  U.  S.  i,  244  (1900). 


XII.]  OUR  COLONIAL  SYSTEM  389 

or  place,  and  such  as  are  operative  only  '  throughout  the  United 
States'  or  among  the  several  states.  Thus  when  the  Constitu- 
tion declares  that  'no  bill  of  attainder  or  ex  post  facto  law  shall 
be  passed/  and  that  'no  title  of  nobility  shall  be  granted  by 
the  United  States,'  it  goes  to  the  competency  of  Congress  to 
pass  a  bill  of  that  description.  .  .  .  Upon  the  other  hand, 
when  the  Constitution  declares  that  all  duties  shall  be  uniform 
'throughout  the  United  States,'  it  becomes  necessary  to  inquire 
whether  there  be  any  territory  over  which  Congress  has  juris- 
diction which  is  not  a  part  of  the  'United  States,'  by  which 
term  we  understand  the  States  whose  people  united  to  form 
the  Constitution,  and  such  as  have  since  been  admitted  to  the 
Union  upon  an  equality  with  them."  It  would  seem  that  such 
expositions  leave  really  nothing  for  future  controversy  as  to  the 
relations  existing  between  our  colonies  or  territories  and  the 
Constitution,  which,  in  its  entirety,  belongs  to  the  states  alone. 

The  statement  has  been  made  already  that  Spain's  colonial  Spain's 
system,  more  paternal  than  that  of  England,  rested  on  a  com- 
mercial  policy  most  irrational  and  intolerable  in  its  restrictions 
and  repressions.  Spain  retained  in  her  own  hands  the  entire 
trade  of  her  colonies,  a  monopoly  which  she  guarded  with  the 
severest  penalties.  When  during  the  Napoleonic  wars  she  lost 
control  of  her  American  possessions,  British  merchants  slipped 
into  the  prohibited  domain  and  built  up  a  trade  of  great  value. 
That  commercial  conquest  upon  the  part  of  Great  Britain  Britain's 
was  seriously  imperiled  when,  in  the  summer  of  1823,  the  Holy  commercial 
Alliance  notified  her  that,  so  soon  as  France  should  complete  imperiled, 
the  overthrow  of  the  revolutionary  government  of  Spain,  a 
congress  would  be  called  for  the  purpose  of  terminating  the 
revolutionary  governments  in  South  America,  which  had  then 
been  recognized  by  the  United  States  but  not  by  Great  Britain.1 
In  order  to  thwart  that  design,  —  whose  success  involved  of 
course  a  surrender  to  Spain  of  the  monopoly  of  the  valuable 
trade  then  enjoyed  with  her  emancipated  colonies,  —  Great 
Britain  opened  a  diplomatic  negotiation  with  this  country 
out  of  which  grew  the  doctrine  now  generally  known  as  the 

1  When  in  1825  Canning  formally  the  Peninsula  by  "calling  the  New 

recognized  the  independence  of  such  World  into  existence  to  redress  the 

governments,  his  intention  is  said  balance  of  the  Old."  Alison,  History 

to  have  been  to  seek  compensation  of  Europe  from  the  Fall  of  Napoleon, 

for  the  preponderance  of  France  in  ii,  715  sq. 


390  THE  AMERICAN  CONSTITUTION  [Cn. 

Real  origin  Monroe  Doctrine.  The  fact  is  that  the  attempt  made  by  those 
Doctrine*  wno  c^me(^  tne  right  to  exercise  a  primacy  or  overlordship 
in  the  affairs,  external  and  internal,  of  European  states  to  ex- 
tend that  system  of  interference  to  American  republics  forced 
the  government  of  the  United  States,  as  the  dominant  political 
power  in  this  hemisphere,  to  assert  that  in  itself  alone  resides 
a-  primacy  or  overlordship,  which  has  gradually  become  as 
well  defined  in  the  New  World  as  that  of  the  Concert  of 
Europe  in  the  Old. 

Castlereagh  Castlereagh,  who  was  regarded  as  too  much  in  sympathy 

with  the  Holy  Alliance,  yielded  the  direction  of  England's  for- 
eign affairs  to  Canning,  who  came  forward  as  an  advocate  of 
the  universal  right  of  self-government,  and  as  an  opponent 
of  France's  invasion  of  Spain,  just  in  time  to  deal  with  the 
momentous  question  presented  by  the  threat  of  the  Alliance  to 
extend  its  interference  to  Spain's  relations  with  her  colonies 
in  South  America.   In  order  to  deal  with  that  design,  so  full  of 
menace  to  the  interests  of  English  merchants,  Canning,  in 
hiscorre-          the  summer  of  1823,  began  to  correspond  with  Mr.  Rush,  the 
Rush  Tssr?™1     American  Minister  at  London,  as  to  the  advantages  of  a  joint 
declaration  by  Great  Britain  and  the  United  States  against  the 
proposed  European  intervention.  So  soon  as  President  Mon- 
submitted  by     roe  received  that  correspondence  he  submitted  it  to  Jefferson, 
Jefferson10         t^ien  m  retirement»  Wlt^  tne  request  that  he  would  advise  him 
in  the  matter.   On  the  24th  of  October,  Jefferson  in  his  letter 
from  Monticello  said,  among  other  things,  that  "the  question 
presented  by  the  letters  you  have  sent  me  is  the  most  moment- 
ous which  has  been  offered  to  my  contemplation  since  that  of 
Independence.  That  made  us  a  nation;  this  sets  our  compass 
and  points  the  course  which  we  are  to  steer  through  the  ocean 
of  time  opening  on  us.  And  never  could  we  embark  upon  it  un- 
der circumstances  more  auspicious.  Our  first  and  fundamental 
maxim  should  be  never  to  entangle  ourselves  in  the  broils 
of  Europe;  our  second,  never  to  suffer  Europe  to  intermeddle 
with  cis-Atlantic  affairs.  America,  North  and  South,  has  a  set 
of  interests  distinct  from  those  of  Europe,  and  peculiarly  her 
An  American     own.  She  should,  therefore,  have  a  system  of  her  own,  separate 
system  denned.  and  apart  from  that  of  Europe    ^  %  ^  Qne  nation,  most  of  all, 

could  disturb  us  in  this  pursuit;  she  now  offers  to  lead,  aid,  and 
accompany  us  in  it.   By  acceding  to  her  proposition  we  detach 


XII.]  OUR  COLONIAL  SYSTEM  391 

her  from  the  bands,  bring  her  mighty  weight  into  the  scale  of 
free  government,  and  emancipate  a  continent  at  one  stroke, 
which  might  otherwise  linger  in  doubt  and  difficulty.  Great 
Britain  is  the  nation  which  can  do  us  the  most  harm  of  any  one 
or  all  on  earth,  and  with  her  on  our  side  we  need  not  fear  the 
whole  world.  With  her,  then,  we  should  most  sedulously  cher- 
ish a  cordial  friendship,  and  nothing  would  tend  more  to  knit 
our  affections  than  to  be  fighting  once  more  side  by  side  in  the 
same  cause." 

Then,  passing  to  another  branch  of  the  subject  confronting  Control  of 
us  at  our  very  doors,  he  said:  "But  we  have  first  to  ask  our-  2f jjjj^ 
selves  a  question.  Do  we  wish  to  acquire  to  our  own  confed-  tion  of  Cuba, 
eracy  any  one  or  more  of  the  Spanish  provinces?  I  candidly 
confess  that  I  have  ever  looked  on  Cuba  as  the  most  interest- 
ing addition  which  could  ever  be  made  to  our  system  of  states. 
The  control  which,  with  Florida  Point,  this  island  would  give 
to  us  over  the  Gulf  of  Mexico  and  the  countries  and  isthmus 
bordering  on  it,  as  well  as  all  those  whose  waters  flow  into  it, 
would  fill  up  the  measure  of  our  political  well-being.  Yet,  as  I 
am  sensible  that  this  can  never  be  obtained,  even  with  her  own 
consent,  but  by  war,  and  its  independence,  which  is  our  second 
interest  (and  especially  its  independence  of  England) ,  can  be 
secured  without  it,  I  have  no  hesitation  in  abandoning  my  first 
wish  to  future  chances,  and  accepting  its  independence,  with 
the  peace  and  friendship  of  England,  rather  than  its  associa- 
tion at  the  expense  of  war  and  her  enmity."1  Madison,  who  Approval  of 
was  consulted  at  the  same  time  through  Jefferson,  gave  his 
cordial  approval  to  Canning's  suggestion,2  and  Calhoun,  who 
was  Secretary  of  War  at  the  time,  declared  that  he  believed 
that  the  Alliance  "had  an  ultimate  eye  to  us;  that  they  would, 
if  not  resisted,  subdue  South  America.  .  .  .  Violent  parties 
would  arise  in  this  country,  one  for  and  one  against  them,  and 
we  should  have  to  fight  upon  our  shores  for  our  institutions." 

Thus  advised,  President  Monroe  in  his  message  of  December 
2,  1823,  said  to  Congress  that  "in  the  wars  of  the  European 
powers,  in  matters  relating  to  themselves,  we  have  never  taken 
any  part,  nor  does  it  comport  with  our  policy  to  do  so.  It  is 
only  when  our  rights  are  invaded  or  seriously  menaced  that  we 
resent  injuries  or  make  preparation  for  our  defense.  With  the 
1  Jefferson's  Works,  vii,  315.  *  Madison's  Writings,  in,  339. 


392 

European  sys- 
tem not  to  be 
extended  to 
this  hemi- 
sphere. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


No  interfer- 
ence with  ex- 
isting colonies. 


movements  in  this  hemisphere  we  are  of  necessity  more  im- 
mediately connected,  and  by  causes  which  must  be  obvious  to 
all  enlightened  and  impartial  observers.  The  political  system 
of  the  allied  powers  is  essentially  different  in  this  respect  from 
that  of  America.  This  difference  proceeds  from  that  which  ex- 
ists in  their  respective  governments.  And  to  the  defense  of  our 
own,  which  has  been  achieved  by  the  loss  of  so  much  blood 
and  treasure,  and  matured  by  the  wisdom  of  their  most  enlight- 
ened citizens,  and  under  which  we  have  enjoyed  unexampled 
felicity,  this  whole  nation  is  devoted.  We  owe  it,  therefore,  to 
candor  and  to  the  amicable  relations  existing  between  the  United 
States  and  those  powers  to  declare  that  we  should  consider 
any  attempt  on  their  part  to  extend  their  system  to  any  por- 
tion of  this  hemisphere  as  dangerous  to  our  peace  and  safety. 
With  the  existing  colonies  or  dependencies  of  any  European 
power  we  have  not  interfered,  and  shall  not  interfere.  But  with 
the  governments  who  have  declared  their  independence  and 
maintained  it,  and  whose  independence  we  have,  on  great  con- 
sideration and  on  just  principles,  acknowledged,  we  could  not 
view  any  interposition  for  the  purpose  of  oppressing  them,  or 
controlling  in  any  other  manner  their  destiny,  by  any  Euro- 
pean power,  in  any  other  light  than  as  the  manifestation  of  an 
unfriendly  disposition  toward  the  United  States.  .  .  .  It  is  im- 
possible that  the  allied  powers  should  extend  their  political 
system  to  any  portion  of  either  continent  without  endanger- 
ing our  peace  and  happiness ;  nor  can  any  one  believe  that  our 
Southern  brethren,  if  left  to  themselves,  would  adopt  it  of 
their  own  accord.  It  is  equally  impossible,  therefore,  that  we 
should  behold  such  interposition,  in  any  form,  with  indiffer- 
ence. If  we  look  to  the  comparative  strength  and  resources  of 
Spain  and  those  new  governments,  and  their  distance  from  each 
other,  it  must  be  obvious  that  she  can  never  subdue  them." 

At  an  earlier  stage  of  his  message,  in  a  paragraph  (7)  far 
removed  from  the  two  (48  and  49)  from  which  the  foregoing 
extract  was  taken,  President  Monroe  had  expressed  himself  in 
the  same  general  way  in  reference  to  a  subject  having  no  con- 
nection whatever  with  the  intervention  of  the  Holy  Alliance 
in  the  affairs  of  South  America.  The  first  declaration  —  relat- 
ing to  fresh  acquisitions  of  territory  by  European  powers  in.  any 
portion  of  the  American  continents  by  occupation  or  coloniza- 


XII.]  OUR  COLONIAL  SYSTEM  393 

tion — was  prompted  by  a  controversy  as  to  unsettled  bound-  Unsettled 
aries  in  the  Northwest  that  grew  out  of  a  ukase  issued  by  the  SS?»SS^t 
Czar  of  Russia  in  September,  1821,  in  which  he  had  asserted  Ukase  of  Sep- 
exclusive  territorial  rights  from  the  extreme  northern  limit  of  tember' l821- 
the  continent  to  the  fifty-first  parallel  of  north  latitude,  by  at- 
tempting to  exclude  foreigners  from  fishing  and  navigation  for 
the  purposes  of  commerce  within  an  hundred  Italian  miles  of 
the  coast  down  to  that  parallel.  Against  that  ukase  both  Great 
Britain  and  the  United  States  protested  because  an  unsettled 
controversy  was  then  pending  between  them  as  to  the  very 
territory  to  which  the  Czar  thus  laid  claim.  When  Russia  pro- 
posed an  amicable  settlement  of  the  matter,  John  Quincy  J.Q.Adams's 
Adams,  then  Secretary  of  State,  said  to  the  Russian  minister,  j^?^™^ 
at  a  conference  held  on  July  17,  1823,  "that  we  should  contest 
the  right  of  Russia  to  any  territorial  establishment  on  this  con- 
tinent, and  that  we  should  assume  distinctly  the  principle  that 
the  American  continents  are  no  longer  subjects  for  any  new 
colonial  establishments."1  In  the  part  of  the  message  in  ques- 
tion, President  Monroe  restated  the  matter  in  this  form:  ''The 
occasion  has  been  judged  proper  for  asserting,  as  a  principle  in 
which  the  rights  and  interests*of  the  United  States  are  involved, 
that  the  American  continents,  by  the  free  and  independent  con- 
dition which  they  have  assumed  and  maintain,  are  henceforth 
not  to  be  considered  as  subjects  tor  future  colonization  by  any 
European  powers."  Such  are  the  two  foundations,  relating 
to  two  entirely  distinct  subject-matters,  of  what  is  generally 
known  as  the  Monroe  Doctrine  (the  joint  product  of  the  brains 
of  Jefferson  and  Adams)  —  a  doctrine  which  has  gradually 
reached  its  present  dimensions  through  more  than  eighty  years 
of  persistent  development. 

Pending  the  controversy  with  Great  Britain  as  to  the  Oregon 
territory,  and  in  the  face  of  possible  intervention  by  the  Euro-  President 
pean  powers  on  account  of  the  annexation  of  Texas,  President 
Polk,  in  his  message  of  December  25,  1845,  greatly  widened  25, 1845. 

1  J.  Q.  Adams's  Memoirs,  vi,  163.  tion.    Occupied  by  civilized  nations, 

On  July  2,  Mr.  Adams  had  written  they  will  be  accessible  to  Europeans 

to  Mr.  Rush,  our  minister  at  Lon-  and  each  other  on  that  footing  alone." 

don,  that  a  "necessary  consequence  For  a  more  complete  statement  of 

of  this  state  of  things  will  be,  that  the  entire  subject,  see  Taylor,  Inter- 

the  American  continents  henceforth  national  Public  Law,  vi. 
will  no  longer  be  subject  to  coloniza- 


394 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Clayton- 
Bulwer 
treaty, 
1850. 


France's 
intervention 
in  Mexico. 


Definition  of 
Monroe  Doc- 
trine com- 
pleted by 
President 
Cleveland. 


the  protest  of  President  Monroe  against  "future  colonization 
by  any  European  powers,"  when  he  said  that  "it  should  be  dis- 
tinctly announced  to  the  world  as  our  settled  policy,  that  no 
future  European  colony  or  dominion  shall,  with  our  consent, 
be  planted  or  established  on  any  part  of  the  North  American 
continent."  The  step  backward,  taken  at  the  making  of  the 
Clayton-Bulwer  treaty  of  1850,  —  in  which  the  United  States 
did  enter  into  an  alliance  or  combination  with  a  European 
power  for  the  settlement  of  questions  connected  with  interests 
in  this  hemisphere,  —  was  more  than  regained  when  in  Decem- 
ber, 1865,  it  became  necessary  for  the  Government  of  the 
United  States  to  terminate  the  intervention  of  France  in  the 
internal  affairs  of  Mexico.  Notice  was  then  given  that  friend- 
ship with  that  country  must  cease,  "unless  France  could  deem 
it  consistent  with  her  interest  and  honor  to  desist  from  the  pro- 
secution of  armed  intervention  in  Mexico  to  overthrow  the 
domestic  republican  government  existing  there,  and  to  establish 
upon  its  ruins  the  foreign  monarchy  which  has  been  attempted 
to  be  inaugurated  in  the  capital  of  that  country."1 

Not,  however,  until  a  resolute  and  far-sighted  statesman, 
who  clearly  understood  that  our  marvelous  national  develop- 
ment entitled  us  to  rank  as  a  world-power,  was  given  the  oppor- 
tunity by  the  boundary  controversy  between  Great  Britain 
and  the  Republic  of  Venezuela,  was  the  inevitable  declaration 
finally  made,  that  the  same  reasons  that  impel  the  Concert  of 
Europe  to  guard  the  balance  of  power  in  the  Old  World  prompt 
the  government  of  the  United  States  to  maintain  alone  its 
primacy  in  the  New.  In  his  special  message 2  to  Congress  of 
December  17,  1895,  President  Cleveland,  after  referring  to  the 
contention  of  the  British  prime  minister  that  the  Monroe  Doc- 
trine had  been  given  "a  new  and  strange  extension  and  devel- 
opment," said  that  "without  attempting  extended  argument 
in  reply  to  these  positions,  it  may  not  be  amiss  to  suggest  that 
the  doctrine  upon  which  we  stand  is  strong  and  sound,  because 
its  enforcement  is  important  to  our  peace  and  safety  as  a  na- 
tion and  is  essential  to  the  integrity  of  our  free  institutions  and 
the  tranquil  maintenance  of  our  distinctive  form  of  govern- 


1  Mr.  Seward,  Secretary  of  State, 
to  Mr.  Bigelow,  Dec.  16, 1865;  MSS. 
Inst.,  France. 


2  Messages    and 
Presidents,  ix,  655. 


Papers    of   the 


XII.]  OUR  COLONIAL  SYSTEM  395 

ment.  It  was  intended  to  apply  to  every  stage  of  our  national 
life  and  cannot  become  obsolete  while  our  Republic  endures. 
If  the  balance  of  power  is  justly  a  cause  for  jealous  anxiety  among  Balance 
the  governments  of  the  Old  World,  and  a  subject  for  our  absolute  oifworid1 
non-interference,  none  the  less  is  an  observance  of  the  Monroe  Doc-  and  New. 
trine  of  vital  concern  to  our  people  and  their  government.  .  .  .The 
Monroe  Doctrine  finds  its  recognition  in  those  principles  of  in- 
ternational law1  which  are  based  upon  the  theory  that  every  na- 
tion shall  have  its  rights  protected  and  its  just  claims  enforced." 
The  italicized  words  embody  the  first  scientific  statement  of  the 
real  and  only  ground  upon  which  the  Monroe  Doctrine  can  be 
sustained  as  a  matter  of  international  law.  The  soundness  of 
that  position  Great  Britain  justly  and  frankly  recognized  when 
she  conceded  the  right  of  arbitration,  then  asserted  by  the 
United  States,  solely  by  virtue  of  its  primacy  or  overlordship 
in  the  New  World.2  It  is  folly  to  contend  that  that  primacy  as 
it  exists  to-day  is  just  what  it  was  when  originally  formulated 
by  President  Monroe.  As  "it  was  intended  to  apply  to  every 
stage  of  our  national  life  and  cannot  become  obsolete  while 
our  Republic  endures,"  it  has  grown  with  our  growth,  and 
now  stands  ready  to  adapt  itself  to  all  future  developments. 
The  marvel  to  students  of  the  American  Constitution  is  that 
the  upbuilding  of  the  primacy  of  the  United  States  in  the  New 
World  has  been  worked  out  by  the  pens  of  Presidents  and 
Secretaries  of  State,  —  it  is  purely  a  creation  of  the  executive 
power. 

Passing  as  we  are  under  the  influence  of  forces  which  are 

1  "The  supremacy  of  a  Committee  ing :  "  From  the  point  of  view  of  the 
of  States  and  the  supremacy  of  a  sin-  United  States  the  arrangement  is  a 
gle  State  cannot  be  exercised  in  the  concession  by  Great  Britain  of  the 
same  manner.    What  in  Europe  is  most  far-reaching  kind.   It  admits  a 
done  after  long  and  tedious  negotia-  principle  that  in  respect  of  South 
tions,  and  much  discussion  between  American     republics     the     United 
representatives  of  no  less  than  six  States  may  not  only  intervene  in  dis- 
countries,  can  be  done  in  America  putes,  but  may  entirely  supersede 
by  the  decision  of  one  Cabinet  dis-  the  original  disputant  and  assume 
cussing  in  secret  at  Washington."  exclusive  control  of  the  negotiations. 
T.  J.  Lawrence,  The  Principles  of  Great    Britain   cannot,    of   course, 
International  Law  (1898),  p.  247.  bind  any  other  nation  by  her  action, 

2  That  the  statesmen  of  Great  but  she  has  set  up  a  precedent  which 
Britain  perfectly  understood  at  the  may  in  future  be  quoted  with  great 
time  the  magnitude  of  the  conces-  effect      against      herself."    London 
sion  clearly  appears  from  the  follow-  Times,  November  14,  1896. 


396 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Diplomatic  re- 
lations with 
the  Orient. 


Our  hegemony 
in  Central  and 
South  America. 


Population 
and  trade  of 
the  Orient. 


rapidly  making  us  a  part  of  the  growing  greatness  of  the  Pacific, 
it  is  impossible  not  to  perceive  that  the  pens  of  Presidents  and 
Secretaries  of  State  are  seriously  at  work  defining  our  attitude 
toward  the  diplomacy  of  the  Orient,  in  which  we  are  already 
deeply  involved.  When  in  1823  Jefferson  wrote  to  Monroe, "I 
candidly  confess  that  I  have  ever  looked  on  Cuba  as  the  most 
interesting  addition  which  could  ever  be  made  to  our  system 
of  states.  The  control  which,  with  Florida  Point,  this  island 
would  give  to  us  over  the  Gulf  of  Mexico  and  the  countries  and 
isthmus  bordering  on  it,  as  well  as  all  those  whose  waters  flow 
into  it,  would  fill  up  the  measure  of  our  political  well-being" 
—  he  clearly  foresaw  that  our  sphere  of  influence  was  soon  to 
be  extended  over  the  Gulf  of  Mexico,  the  Caribbean  Sea,  "and 
the  countries  and  isthmus  bordering  on  it."  If  the  building  of 
the  canal  was  not  expressly  mentioned,  such  an  event  was  no 
doubt  contemplated  by  a  mind  whose  prescience  was  almost 
supernormal.  At  that  time  Great  Britain,  then  drawing  one 
fourth  of  her  commerce  from  the  West  Indies,  was  a  rival  at  our 
very  doors.  To-day  her  fleet  has  been  practically  removed 
from  the  Caribbean  Sea.  Since  the  close  of  the  Spanish-Ameri- 
can War,  Cuba,  Porto  Rico,  and  the  Philippines  have  passed 
under  our  actual  control,  while  over  the  whole  of  Central  and 
South  America  our  hegemony  has  been  extended  as  never  be- 
fore. In  order  to  defend  the  widely-scattered  possessions  thus 
acquired  from  Spain,  it  has  become  necessary  not  only  to  con- 
struct the  isthmian  canal  but  to  enter  into  new  diplomatic 
understandings  that  have  made  the  old  maxim  of  "no  en- 
tangling alliances"  an  anachronism.  Just  before  his  death,  Sir 
William  Hunter,  a  profound  student  of  Asian  questions, 
wrote:  "  I  hail  the  advent  of  the  United  States  in  the  East  as  a 
new  power  for  good,  not  alone  for  the  island  races  that  come 
under  her  care,  but  also  in  that  great  settlement  of  European 
spheres  of  influence  in  Asia,  which,  if  we  could  see  aright,  forms 
the  world  problem  of  our  day." 

In  estimating  the  magnitude  of  that  problem,  we  must  re- 
member that  more  than  half  of  the  population  of  the  world  are 
of  Oriental  descent,  and  Oriental  customs  of  life ;  and  that  of 
that  800,000,000  or  900,000,000  China  furnishes  400,000,000, 
India  300,000,000,  —  their  imports  being  estimated  at  some 
$2,000,000,000  a  year.  In  that  vast  and  growing  trade,  about 


XII.]  OUR  COLONIAL  SYSTEM  397 

two  thirds  of  which  now  comes  from  Europe,  the  United 
States  is  resolved  to  participate.  An  acute  observer,1  who  has 
recently  examined  conditions  on  the  ground,  has  well  said: 
"Even  if  we  were  not  in  control  of  the  West  Indies,  and  in 
the  Philippine  Islands,  our  position  as  guardians  of  the  Pan- 
ama Canal,  and  as  sponsors  for  the  safety  from  aggression  of 
the  South  American  Republics,  and  our  position  on  the  Pacific 
Ocean,  force  us  to  play  a  part  in  the  East.  A  nation,  like  an  A  nation  must 
individual,  must  grow  or  die.  It  is  true  that  our  first  concern  grow  or  die* 
is  with  matters  at  home.  How  a  man  will  run,  how  he  will 
think  even,  depends  not  a  little  on  the  condition  of  his  heart. 
Our  progress  and  prowess  in  the  East  depend,  as  is  the  case 
with  England,  upon  our  moral  fibre  at  home.  .  .  .  He  travels 
with  eyes  and  ears  sealed  who  does  not  become  convinced 
that  this  century  is  not  concerned  as  were  the  sixteenth  and 
seventeenth  with  religious  struggles,  as  was  the  eighteenth 
with  the  rights  of  man,  as  was  the  nineteenth  with  questions 
of  nationality.  The  twentieth  century  even  now  is  character- 
ized by  a  struggle  for  existence  in  the  field  of  commerce  and 
industry." 

Foremost  among  the  nations  that  must  struggle  for  commer-  Germany 
cial  and  industrial  expansion  or  perish  is  the  dominant  military        JaPan- 
power  of  Europe,  Germany,  with  a  territory  smaller  than  that 
of  Texas  and  with  a  population  of  more  than  60,000,000  which 
she  can  feed  for  only  about  two  thirds  of  the  year.   In  the  same 
situation  is  Japan,  which  lies  off  the  east  coast  of  Asia  as  the 
British  Isles  lie  off  the  west  coast  of  Europe,  with  about  the 
same  geographical  area.  Japan  has  a  population  of  317  to  the 
square  mile,  while  Great  Britain,  with  a  smaller  area  than  Col- 
orado, has  a  density  of  470,  England  alone  having  a  density  of 
605.  Since  the  granting  of  two  trading  charters,  "within  the 
period  of  ten  years,  under  the  last  of  the  Tudors  and  the  first 
of  the  Stuarts,"  2  Great  Britain  has  expanded  into  the  British  Expansion  of 
Empire,  which  now  governs  400,000,000  people  occupying  a  Great  Britain- 
total  area  of  11,500,000  square  miles.  Rich  as  Great  Britain  is, 
with  a  yearly  governmental  expenditure  of  $1,000,000,000,  with 

1  See   the   lucid   article   of    Mr.  teresting  statistics.  The  author  has 

Price  Collier,  entitled  "  On  the  Way  profited  by  some  of  them, 

to  India,"  in  Scribner's  Magazine  for  *  See  above,  p.  380. 
January,  1911,  containing  many  in- 


398 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Expansion  of 
the  United 
States. 


The  shores 
of  the  Pacific 
in  1852. 


a  national  debt  of  $3,800,000,00x3,  with  her  birth-rate  diminish- 
ing, and  her  workmen  emigrating  for  lack  of  employment  at 
home,  —  she  cannot  for  a  moment  suspend  the  struggle  for  ex- 
istence in  the  field  of  commerce  and  industry.  If  she  loses  her 
supremacy  at  sea,  and  with  it  the  Suez  Canal  and  India,  she 
must  suffer  the  fate  of  Venice,  Spain,  Holland,  or  Denmark. 
Next  to  our  own  affairs,  those  of  Great  Britain  are  of  the  deep- 
est concern  to  us. 

The  thirteen  states  and  two  territories,  founded  in  the  main 
by  English  settlers  on  our  Atlantic  seaboard,  began  their  career 
as  a  nation  with  a  population  of  3,673,572,  occupying  a  total 
area  of  843,255  square  miles,  with  the  Mississippi  River  as  its 
western  boundary.  The  outcome  of  the  migration  which  has 
swept  westward  from  that  beginning,  first  to  the  Pacific  Coast 
and  then  beyond  it,  is  a  population  now  estimated  at  101,100,000, 
occupying  a  total  area  of  3,747,381  square  miles.  As  late  as 
1852  the  vast  expanse  of  territory  between  the  Mississippi  and 
the  Pacific  was  almost  an  unknown  land.  The  only  states  then 
organized  within  it  were  Louisiana,  Arkansas,  Texas,  Missouri, 
and  California,  the  last  a  string  of  mining-camps  with  a  popu- 
lation of  about  90,000.  Oregon,  Washington,  and  British  Co- 
lumbia contained  only  a  few  scattered  settlements  and  trading- 
stations,  from  which  there  were  practically  no  exports  but  furs, 
while  Mexico,  Central  America,  and  the  Pacific  States  of  South 
America,  then  recently  emancipated  from  Spain,  were  still 
hampered  by  internal  dissensions,  and  the  traditionally  incom- 
petent commercial  methods  of  the  old  Spanish  colonial  system. 
The  uncertain  movements  of  the  whaling-ships  around  Cape 
Horn  were  almost  the  only  means  of  communication  between 
Honolulu  and  the  outside  world ;  the  Australian  colonies  were 
upon  the  threshold  of  their  career,  giving  only  a  slight  sugges- 
tion of  the  mighty  development  of  wealth  soon  to  come;  China 
had  very  recently  been  forced  to  open  a  few  of  her  ports  to  for- 
eign commerce ;  while  Japan,  still  a  sealed  mystery,  rigorously 
excluded  foreigners,  and  made  it  a  capital  offense  for  any 
native  to  leave  the  country.  Not  until  1857-58  were  the  three 
ports  of  Nagasaki,  Kanagawa,  and  Hakodadi  opened  to  for- 
eigners. Except  when  adventurous  traders  intruded  for  the 
purpose  of  obtaining  a  few  furs  in  exchange  for  fire-water  and 
trinkets,  Alaska  and  the  Siberian  coast  of  Asia  were  in  the  un- 


XII.]  OUR  COLONIAL  SYSTEM  399 

disturbed  possession  of  the  seal  and  Eskimo.1  At  that  juncture, 
-  when  steamships  were  still  a  curiosity  in  many  parts  of  the 
Pacific,  when  there  were  no  railroad  tracks  or  telegraph  lines 
west  of  the  Mississippi,  when  trade,  commerce,  and  shipping 
in  that  quarter  were  meagre  indeed,  —  a  great  American  states- 
man, destined  to  exercise  an  immense  influence  upon  our  for- 
eign affairs,  foretold  in  a  prophetic  speech  all  that  was  to  come. 
When  on  July  29,  1852,  a  motion  was  made  in  the  Senate  of  the  Mr.  Seward's 
United  States  to  proceed  to  the  consideration  of  a  bill  "author-  J^jjy 
izing  an  exploration  and  reconnoissance  of  the  courses  of  nav-  29, 1852. 
igation  used  by  whaling-vessels  in  the  regions  of  Behring's 
Straits,  and  also  of  such  parts  of  the  China  Sea,  Straits  of  Gas- 
par,  and  Java  Sea,  as  lie  directly  in  the  route  of  vessels  pro- 
ceeding to  and  from  China,"  William  H.  Seward2  of  New  York 
said :  "The  settlement  of  the  Pacific  Coast  is  in  a  state  of  sheer 
infancy.  .  .  .  Without  waiting  for  perfect  or  safe  channels, 
a  strong  and  steady  stream  of  emigration  flows  thither  from 
every  state  and  every  district  eastward  of  the  Rocky  Mount- 
ains. Similar  torrents  of  emigration  are  pouring  into  Cali- 
fornia and  Australia  from  the  South  American  states,  from 
Europe,  and  from  Asia.  This  movement  is  not  a  sudden  or  ac- 
cidental, or  irregular,  or  convulsive  one,  but  it  is  one  for  which 
men  and  nature  have  been  preparing  through  near  four  hun- 
dred years.  During  all  that  time  merchants  and  princes  have 
been  seeking  how  they  could  reach,  cheaply  and  expeditiously, 
'Cathay,'  'China,'  'the  East,'  that  intercourse  and  commerce  The  path  to 
might  be  established  between  its  ancient  nations  and  the  newer  the  East- 
ones  of  the  West.  To  these  objects  Da  Gama,  Columbus, 
Americus,  Cabot,  Hudson,  and  other  navigators,  devoted 
their  talents,  their  labors,  and  their  lives.  Even  the  discovery 
of  this  continent  and  its  islands,  and  the  organization  of  so- 
ciety and  government  upon  them,  grand  and  important  as 
these  events  have  been,  were  but  conditional,  preliminary,  and 
ancillary  to  the  more  sublime  result,  now  in  the  act  of  consum- 
mation —  the  reunion  of  the  two  civilizations,  which  having 
parted  on  the  plains  of  Asia  four  thousand  years  ago,  and  hav-  tions. 

1  For  a  larger  statement  see  a  pearedinthe  North  American  Review 

notable  article  entitled  "The  Grow-  for  April,  1895. 

ing   Greatness  of  the  Pacific,"  by  *  Seethe  Congressional  Globe,  32  d 

Lorrin  A.  Thurston,  then  Hawaiian  Congress,  1st  sess.,  part  3,  p.  1975. 
Minister  at  Washington,  which  ap- 


40O 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Influence 
on  Asia. 


United  States 
already  in- 
volved in 
Oriental 
problems. 


ing  traveled  ever  afterwards  in  opposite  directions  around  the 
world,  now  meet  again  on  the  coasts  and  islands  of  the  Pacific 
Ocean.  Certainly  no  mere  human  event  of  equal  dignity  and 
importance  has  ever  occurred  upon  earth.  It  will  be  followed 
by  the  equalization  of  the  condition  of  society  and  the  restora- 
tion of  the  unity  of  the  human  family.  ...  As  for  those  who 
doubt  that  this  great  movement  will  quicken  activity  and  cre- 
ate wealth  and  power  in  California  and  Oregon,  I  leave  them 
to  consider  what  changes  the  movements,  similar  in  nature 
but  inferior  in  force  and  slower  in  effect,  have  produced  already 
on  the  Atlantic  Coast  of  America.  As  to  those  who  cannot  see 
how  this  movement  will  improve  the  condition  of  Asia,  I  leave 
them  to  reflect  upon  the  improvements  in  the  condition  of 
Europe  since  the  discovery  and  colonization  of  America.  Who 
does  not  see,  then,  that  every  year  hereafter,  European  com- 
merce, European  politics,  European  thought,  and  European 
activity,  although  actually  gaining  greater  force,  and  Euro- 
pean connections,  although  actually  becoming  more  intimate, 
will,  nevertheless,  ultimately  sink  in  importance;  while  the 
Pacific  Ocean,  its  shores,  its  islands,  and  the  vast  regions 
beyond,  will  become  the  chief  theatre  of  events  in  the  world's 
great  Hereafter." 

Since  that  prophecy  was  made,  we  have  extended  our  domin- 
ion over  large  groups  of  islands  in  the  Pacific  Ocean,  and  our 
diplomatic  influence  to  the  mainland  beyond.  Recently  a  sug- 
gestion proceeded  from  Washington  that  the  six  great  powers 
should  control  the  railway  situation  in  northern  and  southern 
Manchuria,  and  on  July  4,  1910,  Russia  and  Japan  signed  an 
agreement  providing  for  "friendly  cooperation  with  a  view  to 
the  improvement  of  their  respective  railway  lines  in  Manchuria 
and  the  perfecting  of  the  connecting  services  of  the  said  lines, 
and  to  abstain  from  all  competition  prejudicial  to  the  realiz- 
ation of  this  object."  Thus  the  United  States  is  already  in- 
volved in  the  world  problems  presented  by  the  awakening 
Orient,  where  the  struggle  for  existence  in  the  field  of  commerce 
and  industry  is  being  carried  on  by  all  of  the  expanding  nations. 
A  traveler  in  the  Far  East,  who  has  made  its  problems  a  spe- 
cial study,  wrote  thus  in  1906:  "Recently,  in  discussing  the 
present  situation  in  the  Orient  with  a  foreigner  long  distin- 
guished by  his  association  with  events  in  that  part  of  the  world, 


XII.]  OUR  COLONIAL  SYSTEM  401 

I  asked  him  what  in  his  opinion  is  the  greatest  force  applicable 
in  the  readjustment  which  must  follow  the  war  between  Russia 
and  Japan.  'Public  opinion  in  America  and  England,'  he  re-  influence  of 
plied  without  hesitation."1  The  two  English-speaking  demo-  ?u^e^°n 
cracies  —  exercising  dominion  over  15,247,381  square  miles,  and  England, 
occupied  by  a  population  estimated  at  500,000,000  —  are  now 
face  to  face  with  one  of  the  gravest  problems  that  has  ever 
arisen  in  the  history  of  civilization.  The  tremendous  arma- 
ments now  being  prepared  by  the  advancing  nations  are  not 
for  mere  military  display.  The  necessity  that  compels  them  is 
hidden  from  the  eyes  of  the  humane  dreamers  of  the  cloister 
who  imagine  that,  by  common  consent,  they  may  be  reduced 
or  laid  aside.  The  best  prospect  for  peace  lies  in  a  firm  alli- 
ance between  the  two  great  branches  of  English-speaking 
peoples,  whose  moral  and  physical  authority,  backed  by  the 
growing  influence  of  international  arbitration,  may  be  able  to 
avert  a  world-wide  conflict.  Such  is  the  mission  confronting 
the  statesmen  and  diplomatists  who  wield  to-day  the  mighty 
forces  vested  by  the  English  and  American  democracies  in  their 
respective  constitutions. 

1  The  New  Far  East,  by  Thomas  F.  Millard,  6-7. 


CHAPTER  XIII 


Transition 
from  individ- 
ualism to  col- 
lectivism. 


Flight  of  the 
founders  from 
state  power. 


INTERSTATE  COMMERCE,   TRUSTS,   AND  MONOPOLIES 

IF  Savigny  was  right  when  he  said  that  law  is  the  natural 
outcome  of  the  consciousness  of  a  people,  like  their  social  habits 
or  their  language,  and  as  such  is  simply  an  aspect  of  the  na- 
tional life,  then  the  causes  of  radical  changes  in  law  must  be 
sought  in  corresponding  changes  in  the  inner  history  of  the  peo- 
ple themselves.  Only  by  that  process  is  it  possible  to  explain 
the  transformation  in  legal  ideas  that  has  followed  the  transi- 
tion in  this  country  from  the  primitive  individualism,  in  which 
each  citizen  was  surrounded  by  a  wide  circle  of  individual  rights 
practically  free  from  the  intrusion  of  state  power,  to  the  exist- 
ing condition  of  collectivism  in  which  the  rapidly  multiplying 
functions  of  state  power  are  everywhere  intruding  and  narrow- 
ing the  circle  of  individual  rights.  As  all  the  world  knows,  it 
was  the  Laudian  persecution  of  the  Puritans  through  the  ma- 
chinery of  the  State  Church  that  forced  them  to  "  turn  to  the 
New  World  to  redress  the  balance  of  the  Old."  As  the  first  ter- 
rors of  the  persecution  died  down,  there  was  a  lull  for  a  while 
in  the  emigration.  But  so  soon  as  the  pressure  of  the  state  de- 
spotism, religious  and  political,  made  itself  felt  again,  the  "  godly 
people  in  England  began  to  apprehend  a  special  hand  of  Provi- 
dence in  raising  this  plantation"  in  Massachusetts;  "and  their 
hearts  were  generally  stirred  to  come  over."  Despite  the  news 
of  hardships  and  dangers,  as  years  went  by  and  the  contest 
grew  hotter  at  home,  the  number  of  emigrants  rose  fast.  In  a 
single  year  three  thousand  new  colonists  arrived  from  England ; 
and  between  the  sailing  of  Winthrop's  expedition  and  the 
meeting  of  the  Long  Parliament,  that  is,  within  the  space  of  ten 
or  eleven  years,  "two  hundred  emigrant  ships  had  crossed  the 
Atlantic,  and  twenty  thousand  Englishmen  had  found  a  refuge 
in  the  West."1  Thus  it  was  that  a  large  portion  of  the  stern 
and  sturdy  men  who  crossed  the  Atlantic  to  find  homes  in  the 
wilderness  were  driven  here  by  a  brutal  intrusion  of  state  power 
1  Green,  History  of  the  English  People,  iii,  170-171. 


XIII J  INTERSTATE  COMMERCE  403 

into  that  circle  of  individual  rights  surrounding  the  citizen 
which  should  be  free  from  such  intrusion.  The  dread  of  state 
power  thus  born  was  nurtured  as  time  went  on  by  the  teach- 
ings of  a  new  school  of  political  philosophers  that  immediately 
preceded  the  French  Revolution,  which  drew  its  raison  d'etre 
from  the  cruelly  oppressive  intrusion  into  the  life  of  every  in- 
dividual of  a  state  power  so  systematized  as  to  be  omnipresent.  Intrusion  of 
During  the  midnight  period  of  monarchy  that  prevailed  from 
the  sixteenth  century  down  to  the  French  Revolution,  the  legal 
rights  of  the  individual  were  so  narrowed  and  fettered  by  the 
paternal  power  of  the  state  in  France,  with  its  banalites  and 
seigneurs  justiciers,  that  "the  prying  eye  of  the  Government 
followed  the  butcher  to  the  shambles  and  the  baker  to  the 
oven."  There  "the  peasant  could  not  cross  the  river  without 
paying  to  some  nobleman  a  toll,  nor  take  the  produce  which 
he  raised  to  market  until  he  had  bought  leave  to  do  so,  nor 
consume  what  remained  of  his  grain  till  he  had  sent  it  to  the 
lord's  mill  to  be  ground,  nor  full  his  cloths  on  his  own  works, 
nor  sharpen  his  tools  at  his  grindstone,  nor  make  oil  or  cider  at 
his  own  press."  l  Out  of  the  explosion  caused  by  that  terrible 
system  of  oppression  came  what  may  be  called  the  orgy  of  The  orgy  of 
individualism,  immortalized  by  the  broad  generalizations  of  the  " 
French  philosophers  as  to  the  inherent  and  inalienable  rights 
of  man.  The  French  Constitution  of  1793  declared  that  gov- 
ernment is  instituted  to  secure  to  man  the  free  use  of  his 
natural  and  inalienable  rights  to  equality,  liberty,  security,  pro- 
perty. Such  paper  constitutions,  invented  by  the  French  as  a 
means  of  drawing  a  wide  circle  around  the  "rights  of  man"  into 
which  the  state  cannot  intrude,  were  rendered  vastly  more  ef- 
fective by  the  American  invention,  whereby  the  judicial  power, 
as  an  avenging  angel  with  a  drawn  sword,  can  strike  down  all 
acts  of  the  state  forbidden,  expressly  or  impliedly,  by  their 
terms.  To  those  who  witnessed  the  political  earthquake  whose 
centre  was  in  France,  the  state  appeared  to  be  a  monster  as  dan-  The  state  a 
gerous  as  that  of  Frankenstein,  —  a  monster  whose  hands  were  fe^^hiT 
to  be  tied  by  written  constitutions  defining  what  the  citizen  paper  consti- 
regarded  as  his  inalienable  rights.  tutions. 

"Jefferson  had  returned  from  France  in  1789  wholly  en- 

1  See   the   great   argument  of   the    Hon.  John  A.    Campbell   in    the 
Slaughter-House  Cases,  16  Wall.  36. 


404 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Creed  of  Jef- 
ferson's party. 


Individualism 
substructure 
of  national 
character. 


Words  of 
Emerson,  1844. 


grossed  by  the  opening  scenes  of  the  French  Revolution,  and 
personally  triumphant  in  the  prospect  of  the  coming  success 
of  the  principles  which  he  had  formulated  in  the  Declaration  of 
Independence.  Very  soon  after  his  return  he  seems  to  have 
become  fixed  in  the  belief  that  the  conflict  between  government 
by  the  people  and  government  of  the  people  was  to  be  trans- 
ferred to  America  also,  and  that  the  Hamilton  School,  under 
the  guise  of  broad  construction,  was  aiming  at  monarchy." 
As  the  Republican  party  of  Jefferson  matured  its  creed,  it  taught 
the  mass  of  the  population  —  largely  "agricultural,  demo- 
cratic, particularist,  devoted  to  the  worship  of  their  separate 
commonwealths,  and  disposed  to  look  upon  the  Central  or  Fed- 
eral Government  very  much  as  they  had  but  recently  looked 
upon  the  King  "  —  that  the  one  thing  to  be  dreaded  and 
guarded  against  was  state  power  in  any  form  it  might  assume. 
Out  of  such  teachings  came  one  of  the  most  ennobling  and 
strengthening  influences  that  has  ever  entered  into  our  national 
life.  Just  after  we  had  begun  to  realize  that  we  were  Ameri- 
cans and  no  longer  merely  English  colonists,  we  were  thus 
taught  that  the  law  swept  around  each  citizen  a  wide  circle  of 
individual  rights  into  which  no  government,  state  or  federal, 
could  intrude  except  at  its  peril.  The  sturdy  individualism  that 
emerged  from  such  a  system  became  the  substructure  of  a  na- 
tional character  that  received  its  first  impress  from  the  iso- 
lated conditions  of  life  in  which  it  was  born.  The  profound 
modifications  that  have  since  occurred  are  the  outcome  of  the 
intercommunication  that  has  drawn  us  nearer  to  each  other 
and  to  the  outer  world.  In  1844  —  just  after  that  force  had 
manifested  itself  in  the  establishment  of  lines  of  swift  ocean 
steamers  to  Europe  and  in  the  extension  of  railways  into  the 
West  —  Emerson  said :  "We  in  the  Atlantic  States, by  position, 
have  been  commercial,  and  have  imbibed  easily  an  European 
culture.  Luckily  for  us,  now  that  steam  has  narrowed  the  At- 
lantic to  a  strait,  the  nervous,  rocky  West  is  intruding  a  new 
and  continental  element  into  the  national  mind,  and  we  shall 
yet  have  an  American  genius.  .  .  .  We  cannot  look  on  the  free- 
dom of  this  country,  in  connection  with  its  youth,  without  a 
presentiment  that  here  shall  laws  and  institutions  exist  on  some 

1  Johnston,  American  Political  History,  1763-1876,  part  i,  pp.  203,  207. 
(Woodburn  ed.). 


XIII.]  INTERSTATE  COMMERCE  405 

scale  of  proportion  to  the  majesty  of  Nature.  To  men  legislat- 
ing for  the  area  between  the  two  oceans,  betwixt  the  snows  and 
the  tropics,  somewhat  of  the  gravity  of  Nature  will  infuse  it- 
self into  the  code."1  There  is  nothing  in  that  brilliant  para- 
graph to  indicate  that  Emerson  foresaw  that  the  mighty  forces 
of  intercommunication  to  which  he  refers,  and  which  had  be- 
gun already  to  draw  the  West  closer  to  the  East,  and  both  to 
the  great  European  world  beyond,  were  soon  to  bring  about 
a  transition  from  the  individualism,  born  of  the  freedom  and 
isolation  of  our  youth,  to  a  collectivism  through  which  primi- 
tive conditions  have  been  entirely  transformed. 

Even  a  casual  observer  of  existing  conditions  in  our  national  State  power 
life  cannot  fail  to  perceive  that  we  are  in  the  midst  of  an  age  of 
collectivism  in  which  the  functions  of  government,  state  and 
federal,  multiply  as  the  powers  of  the  state  are  invoked  for  the 
protection  of  the  individual  against  the  vast  corporate  com- 
binations arrayed  against  him.  State  power,  no  longer  dreaded 
as  a  monster,  is  now  hailed  as  the  only  deliverer  strong  enough 
to  secure  to  the  isolated  individual  that  equality  of  opportun- 
ity supposed  to  be  guaranteed  to  him  by  the  Constitution  and 
the  laws.  The  practical  result  of  the  change  is  that  as  the  func- 
tions of  the  state  multiply,  the  circle  of  individual  rights  that 
once  surrounded  the  individual  as  a  barrier  against  state  in- 
trusion has  been  seriously  narrowed  at  the  invitation  of  the 
individual  himself.  A  profound  jurist  and  philosopher  who  has 
lately  undertaken  to  deal  with  the  results  of  this  revolution, 
which  has  changed  and  is  changing  the  entire  aspect  of  Ameri- 
can society,  says:  " It  is  no  longer  the  preservation  of  a  strong 
and  independent  individualism  that  is  the  object  of  solicitude. 
It  is  the  creation  of  a  state  of  dependence  of  the  individual  Dependence 
for  his  safety  on  the  state.  .  .  .  Here,  as  fully  as  in  Europe, 
in  the  view  of  the  optimist  at  least,  orderly  cooperation  is  the  state. 
rule  of  social  life  which  modern  legislation  is  seeking  to  en- 
force. It  has  not  waited  for  a  change  in  our  constitutions.  It  is 
content  to  reinterpret  them." 2  Therein  we  are  reminded  that 
the  manufacturer,  who  finds  his  field  of  activity  contracting, 

1  "  The  Young  American,"  lee-  8  Judge  Simeon  E.  Baldwin,  The 

ture  before  the  Mercantile  Library  Narrowing  Circle  of Individual  Rights, 

Association,    Boston,    February    7,  heretofore  quoted,  p.  5.  See  also  pp. 

1844.    Works,  i,  369-370.  7-8. 


4o6  THE  AMERICAN  CONSTITUTION  [Cn. 

illustrations,  cannot  distill  or  brew  in  one  state  and  cannot  make  a  cigarette 1 
in  another;  that  the  employer,  who  could  once  discharge  those 
who  did  not  vote  for  his  candidate,  is  now  punished  by  the  state 
if  he  dares  to  do  so ;  that  the  public  official,  who  was  once  free  to 
take  an  active  part  in  politics,  is  subject  to  removal  for  such 
activity;  that  a  man's  house,  once  subject  to  seizure,  after  just 
compensation,  for  the  purposes  of  government,  may  now  be 
appropriated  for  a  band-stand,  a  memorial  site,  a  hospital,  a  col- 
lege, a  free  library ; 2  that  a  farmer,  who  once  could  plant  and  till 
his  land  as  he  would,  is  now  liable  to  have  it  invaded  by  an 
official  who  may  uproot  the  trees  in  his  orchard  and  leave  him 
without  remedy  if  the  state  deems  such  action  necessary  for 
the  public  welfare; 3  that  the  owner  of  a  wood  lot,  who  was  for- 
merly free  to  cut  it  when  he  pleased  and  as  he  pleased,  may  now 
be  ordered  by  the  legislature  to  refrain  from  cutting  the  whole 
or  a  part  of  the  natural  growth  for  a  period  of  years,  whenever 
such  a  course  is  deemed  to  be  for  the  greatest  good  of  the  great- 
est number ; 4  that  the  owner  of  land  from  which  comes  oil  or 
natural  gas  or  artesian  water  may  be  compelled,  on  the  one  hand, 
to  guard  against  waste,  and  on  the  other  to  refrain  from  in- 
creasing the  natural  flow  to  the  prejudice  of  his  neighbors;5 
that  the  riparian  proprietor  on  streams  not  navigable  may  be 
compelled  in  many  states  to  submit  to  the  flooding  of  his  lands 
by  others,  to  create  water  power  for  them  to  put  to  milling  or 
manufacturing  purposes,  while  his  fishing  rights  may  be  cur- 
tailed or  perhaps  denied  for  years,  in  order  to  replenish  the 
stream  with  more  fish  for  others  to  catch  and  eat ; 6  that  a  gra- 
zier or  butcher,  who  could  formerly  use  his  meat  products  as  he 
saw  fit,  may  now  be  punished  as  a  criminal  should  he  use  his 
tallow  to  make  a  cheap  substitute  for  butter ; 7  that  the  man  who 
could  once  educate  his  children  as  he  pleased,  or  not  at  all,  may 

1  Iowa  Code,  sec.  5006;  Act  of  S.  190;  Manufacturers'  Gas  Co.  v. 
Feb.  28,  1905,  of  Indiana;  State  ».  Indiana  Gas  Co.,  155  Ind.  467.  Simi- 
Lowry,  166  Ind.  372,  77  Northeast-  lar  statutes  have  been  upheld  in  re- 
ern,  728.  ference  to  the  use  of  water  from  arte- 

2  United    States    v.    Gettysburg  sian  wells.  Ex  parte  Elam,  152  Cal., 
Railway  Co.,  160  U.  S.  668.  91  Pac.  811. 

8  State  v.  Main,  69  Conn.  23,  36,  6  Freund  on  the  Police  Power, 

37,  26  L.  R.  A.  673.  sec.  419. 

4  Opinion  of  the  Justices, — Maine,  7  Powell  v.  Pennsylvania,  127  U.  S. 

—  69  Atlantic,  626.  678. 

6  Ohio  Oil  Co.  v.  Indiana,  177  U. 


XIII.]  INTERSTATE  COMMERCE  407 

now  be  compelled  by  the  state  to  educate  them  in  a  certain 
way;  in  obedience  to  the  state's  command  he  sends  them  to  a 
public  school,  where  it  may  refuse  to  receive  them  unless  they 
are  submitted  to  vaccination,  although  he  may  regard  it  as 
unnecessary  and  dangerous ; 1  that  the  man  who  could  once  con- 
template marriage,  with  his  free  choice  untrammeled  by  con- 
siderations of  personal  health,  may  now  be  forbidden  by  the 
state,  under  heavy  penalties,  from  marrying  an  epileptic  or  one 
of  feeble  mind ; 2  that  the  man  who  could  once  dispose  of  his  es- 
tate by  will,  with  few  limitations,  provided  he  was  not  grossly 
unfair  to  his  next  of  kin,  must  now  submit  when  the  state 
demands  a  share  for  itself,  and  one  that  is  to  be  increased  pro- 
gressively with  the  magnitude  of  the  inheritance. 

"The  artificial  person  has  lost  more  even  than  the  natural  Field  of  cor- 
person.   Its  field  of  action  is  continually  being  circumscribed ;  P°rate  ^tioa 

narrowed. 

its  manner  of  action  continually  subjected  to  new  limitations. 
.  .  .  The  individual  laborer  has  also  been  often  treated  by  our 
legislators  like  a  ward  incapable  of  protecting  his  own  inter- 
ests.  The  number  of  hours  for  which  he  can  agree  to  work  in 
a  day  have  been  cut  down,  and  his  liberty  of  contract  in  many 
other  directions  circumscribed.3  On  the  other  hand,  the  power  Organized 
of  the  state  has  often  been  exerted  to  depress  that  of  organized  labor' 
labor.   It  has  regulated  and,  under  some  circumstances,  for- 
bidden strikes.   It  has  forbidden  boycotts.   It  has  forbidden 
(though  it  know  it  not)  combinations  of  labor  in  different 
states  in  restraint  of  commerce  between  those  states.   But 
there  is  no  time  to  multiply  references  to  a  kind  of  legislation 
with  which  every  man  before  me  is  familiar,  and  in  shaping 
which  many  of  whom  have  had  a  part.   It  is  the  age  of  col-  The  age  of 
lectivism.    The  functions  of  the  state  multiply.   Its  circle  of  coUectivism' 
activities  expands,  and  the  circle  of  activities  around  each 
private  individual  is  correspondingly  reduced." 4  When  we  see 
how   such    profound    organic    changes  have   been   wrought 
through  the  silent  operation  of  forces  that  sweep  swiftly  on 

1  Morris  v.  Columbus,   102  Ga.  8  See  N.  Y.  Labor  Law  of  1906; 
792,  42  L.  A.  R.  175.  As  by  the  People  v.  Williams  Engineering  Co., 
Kentucky  Act  of  March  22,  1904.  85     Northeastern,    1070;    William 

2  2  Howard  on  Matrimonial  In-  Adair    v.    United    States,    October 
stitutions,  400,  477,  480;  Gould  v.  Term,  1907. 

Gould,  78  Conn.  242,  61  Atlantic,  4  The  Narrowing  Circle  of  Indi- 
604.  vidual  Rights,  8-9. 


408  THE  AMERICAN  CONSTITUTION  [Cn. 

regardless  of  our  cumbrous  and  impracticable  plan  of  consti- 
tutional amendment,  it  is  hard  to  read,  without  a  smile,  the 
Lecky'smis-  following  misguided  observations:  "An  appetite  for  organic 
apprehension.  change  is  one  of  the  worst  diseases  that  can  affect  a  nation. 
All  real  progress,  all  sound  national  development,  must  grow 
out  of  a  stable,  persistent,  national  character,  deeply'  influ- 
enced by  custom  and  precedent  and  old  traditional  reverence, 
habitually  aiming  at  the  removal  of  practical  evils  and  the 
attainment  of  practical  advantages,  rather  than  speculative 
change.  Institutions,  like  trees,  can  never  attain  their  matur- 
ity or  produce  their  proper  fruits  if  their  roots  are  perpetu- 
ally tampered  with.  In  no  single  point  is  the  American 
Constitution  more  incontestably  superior  to  our  own  than  in 
the  provisions  by  which  it  has  so  effectually  barred  the  path 
of  organic  change  that  the  appetite  for  such  change  has  almost 
passed  away."1  No  careful  student  of  the  American  Constitu- 
tion, who  knows  anything  of  its  history  or  of  its  practical  work- 
ings, could  possibly  have  been  deceived  by  the  fancy  that  or- 
ganic change  has  been  barred  by  our  peculiar  system  of  amend- 
ment, or  that  "the  appetite  for  such  change"  has  been  lost  by 
a  nation  which,  within  a  century,  has  passed  through  more 
organic  changes  than  any  other  in  history  in  the  same  length 
Growing  power  of  time.  If  our  Constitution  really  suffered  from  the  lack  of 
Constitution  Srowmg  power  Mr.  Lecky  has  falsely  attributed  to  it,  it  would 
have  gone  to  wreck  long  ago ;  in  a  process  of  rapid  transition 
it  has  been  able  to  survive  only  through  its  marvelous  elas- 
ticity. The  growing  and  expanding  power  of  the  American 
Constitution  has  proved  itself  to  be  quite  equal  to  that  of  the 
English.  If  it  has  not  an  omnipotent  Parliament  whose  enact- 
ments can,  at  critical  moments,  cut  it  away  from  the  past,  it 
has  its  own  unique  creation,  the  omnipotent  Supreme  Court, 
which  is  always  at  work  preparing  the  way  for  change  by 
gradually  readjusting  organic  relations. 

Causes  of  In  explaining  the  causes  that  have  brought  about  the  transi- 

individuaJismm  **on  *rom  individualism  to  collectivism,  from  a  state  of  things 
to  collectivism,  in  which  the  individual  lived  practically  free  from  the  intru- 
sion of  state  power  to  a  new  condition  in  which  the  multiply- 
ing functions  of  the  state  are  narrowing  the  circle  of  individual 
rights,  —  Judge  Baldwin  has  attempted  to  reduce  them  to 
1  Democracy  and  Liberty,  i,  153,  154. 


XIII.J  INTERSTATE  COMMERCE  409 

two.  "The  first  of  these,"  he  says,  "was  the  Civil  War;  the 
second  was  the  Philosophy  of  Evolution.  The  Civil  War  had 
shown  what  men  massed  together  in  compact  organization 
could  do;  and  how  little,  in  comparison,  could  be  effected  by 
individual  exertion.  It  had  shown  how  in  every  state  a  polit- 
ical majority  could  be  scattered,  suppressed,  annihilated.  It 
had  shown  that  munitions  and  supplies  such  as  armies  de- 
manded could  only  be  furnished  by  great  combinations  of  capi- 
tal and  labor.  ...  As  the  Civil  War  was  drawing  near,  Darwin 
and  Wallace  brought  before  the  world  the  philosophy  of  evolu- 
tion. It  put  the  Creator  of  man  in  a  new  light."1  Complete 
and  exact  as  is  the  picture  drawn  by  this  large  thinker  of  the  re- 
sults so  far  brought  about  by  the  transition  now  going  on  in  this 
country  from  individualism  to  collectivism,  it  is  impossible  to 
accept  as  adequate  the  causes  to  which  he  traces  the  event.  As 
the  real  causes  are  neither  local  nor  accidental,  they  must  be 
discovered  beneath  a  vast  world-movement  that  now  embraces 
America  as  well  as  Europe.  Their  beginnings  must  be  found  in  A  world-move- 
the  development  of  the  great  industrialism  which,  after  a  long 
period  of  preparatory  growth,  began  to  reach  its  culminating  America, 
point  with  the  inventions  and  technical  improvements,  with 
the  application  of  steam  and  the  rise  of  the  factory  system  in 
England,  towards  the  close  of  the  eighteenth  century.  Through 
the  results  of  that  industrial  revolution,  which  now  envelops 
the  civilized  world,  large  aggregations  of  capital  have  so  ap- 
plied the  pressure  of  the  competition  of  the  large  industry  as  to 
crush  out  the  small  capitalist,  and  to  organize  the  working  pro- 
ducers as  an  army  of  drilled  wage-laborers  in  vast  factories 
and  workshops.  Mr.  Bryce,  with  unerring  insight,  clearly  per- 
ceived the  effects  of  the  collectivism  that  has  arisen  out  of  that 
world-wide  industrial  revolution  upon  the  individualism  of 
this  country,  at  a  time  when  those  effects  were  not  so  apparent 
as  they  are  to-day.  Twenty- two  years  ago  he  wrote:  "The  Mr.  Bryce'a 
hundred  years  which  have  passed  since  the  birth  of  the  Repub-  view  m  l888' 
lie  have,  however,  brought  many  changes  with  them.  Individ- 
ualism is  no  longer  threatened  by  arbitrary  kings,  and  the  ram- 
parts erected  to  protect  it  from  their  attacks  are  useless  and 
grass-grown.  If  any  assaults  are  to  be  feared,  they  will  come 
from  another  quarter.  New  causes  are  at  work  in  the  world 
1  The  Narrowing  Circle  of  Individual  Rights,  2-3. 


4io 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Triumphs 
of  physical 
science. 


Unlimited 
competition 
too  strong  for 
the  weak. 


Democracies 
of  America 
eager  for  state 
interference. 


Americans 
charged  with 
having  no 
theory  of  the 
state. 


tending  not  only  to  lengthen  the  arms  of  government,  but  to 
make  its  touch  quicker  and  firmer.  Do  these  causes  operate  in 
America  as  well  as  Europe?  and  if  so,  does  America,  in  virtue 
of  her  stronger  historical  attachment  to  individualism,  op- 
pose a  more  effective  resistance  to  them?  I  will  mention  a  few 
among  them.  Modern  civilization,  in  becoming  more  complex 
and  refined,  has  become  more  exacting.  It  discerns  more  bene- 
fits which  the  organized  power  of  government  can  secure,  and 
grows  more  anxious  to  attain  them.  Men  live  fast,  and  are 
impatient  of  the  slow  working  of  natural  laws.  The  triumphs 
of  physical  science  have  enlarged  their  desires  for  comfort,  and 
shown  them  how  many  things  may  be  accomplished  by  the 
application  of  collective  skill  and  large  funds  which  are  be- 
yond the  reach  of  individual  effort.  .  .  .  Unlimited  competition 
seems  to  press  too  hardly  on  the  weak.  The  power  of  groups  of 
men  organized  by  incorporation  as  joint-stock  companies,  or 
of  small  knots  of  rich  men  acting  in  combination,  has  developed 
with  unexpected  strength  in  unexpected  ways,  overshadowing 
individuals  and  even  communities,  and  showing  that  the  very 
freedom  of  association  which  men  sought  to  secure  by  law 
when  they  were  threatened  by  the  violence  of  potentates  may, 
under  the  shelter  of  the  law,  ripen  into  a  new  form  of  tyranny. 
And  in  some  countries,  of  which  Britain  may  be  taken  as  the 
type,  the  transference  of  political  power  from  the  few  to  the 
many  has  made  them  less  jealous  of  governmental  authority. 
The  government  is  now  their  creature,  their  instrument  —  why 
should  they  fear  to  use  it?  They  may  strip  it  to-morrow  of 
the  power  with  which  they  have  clothed  it  to-day.  .  .  .  The 
new  democracies  of  America  are  just  as  eager  for  state  inter- 
ference as  the  democracy  of  Britain,  and  try  their  experi- 
ments with  even  more  light-hearted  promptitude.  No  one 
need  be  surprised  at  this  when  he  reflects  that  the  causes  which 
have  been  mentioned  as  telling  on  Europe,  tell  on  the  United 
States  with  no  less  force.  Men  are  even  more  eager  than  in 
Europe  to  hasten  on  to  the  ends  they  desire,  even  more  impa- 
tient of  the  delays  which  a  reliance  on  natural  forces  involves, 
even  more  sensitive  to  the  wretchedness  of  their  fellows,  and 
to  the  mischiefs  which  vice  and  ignorance  breed." l  Then,  after 
declaring  that  "the  Americans  have  no  theory  of  the  state  and 
1  The  American  Commonwealth  (3d  ed.),  ii,  539-542. 


XIII.]  INTERSTATE  COMMERCE  411 

take  a  narrow  view  of  its  functions,"  l  Mr.  Bryce  proceeds  to 
say  that  "they  have  grown  no  less  accustomed  than  the  English 
to  carry  the  action  of  government  into  ever-widening  fields. 
Economic  theory  did  not  stop  them,  for  practical  men  are  proud 
of  getting  on  without  theory.  The  sentiment  of  individualism 
did  not  stop  them,  because  state  intervention  has  usually  taken 
the  form  of  helping  or  protecting  the  greater  number,  while 
restraining  the  few."2 

And  here  the  fact  should  be  emphasized  that  this  world-  A  swelling  vol- 
tendency  to  lengthen  the  arms  of  government  and  to  extend  °f  legis" 
them  into  ever-widening  fields  has  of  late  years  so  swelled  the 
volume  of  legislation  that  the  output  has  been  incomparably 
greater,  not  only  absolutely,  but  in  proportion  to  the  population 
of  the  civilized  nations,  than  in  any  previous  age.  This  country 
is  certainly  contributing  its  full  quota  to  the  general  result. 
The  growth  of  legislative  business  in  Congress  appears  upon 
the  face  of  the  following  table,  which  sets  forth  by  decades  the 
total  number  of  bills  introduced  into  the  two  Houses  from 
the  First  Congress  up  to  and  including  the  Sixty-first: — 

BILLS  INTRODUCED3 
Congress  House  Senate  Total 

First  143  46  189 

Tenth  173  54  227 

Twentieth  462  99  561 

Thirtieth  814  485  1299 

Fortieth  1460  648  2108 

Fiftieth  12,664  4000  16,664 

Sixty-first  33.0*5  10,906  43,921 

For  many  years  the  effort  to  lengthen  the  arms  of  state  su-  Subjection 
pervision  has  been  stimulated  in  this  country  by  the  imperious 
necessity  for  curbing  the  power  of  groups  of  men  organized  by  control. 

1  In  refuting  that  charge  from  an-  an  impression   as   this  the  passing 

other  quarter,  Judge  Baldwin  has  tourist,  who   picks   up   the  wrong 

well  said:  "A  recent  English  writer  book  and  asks  the  wrong  man  for 

[H.  G.  Wells,  The  Future  in  America,  information,  might  not  unnaturally 

153]    has  asserted   that  one  great  get.   But  it  belongs  to  a  long  past 

fault  of  the  typical  American  of  to-  state    of    things."   The    Narrowing 

day  is  that  he  has  no  sense  of  the  Circle  of  Individual  Rights,  5. 

state;  no  perception  that  his  own  2  The    American    Commonwealth 

personal  employment  and  activities  (3d  ed.),  ii,  539-542. 

are  constituents  in  a  large  collective  *  See  the  author's  article  on  The 

process,  which  affects  other  people  Speaker  and  his  Powers  in  the  North 

and  indeed  the  world  forever.  Such  American  Review  for  October,  1888. 


412 


THE  AMERICAN  CONSTITUTION 


[Ci 


Dartmouth 
College  case, 
1819. 


A  charter 
a  contract. 


An  important 
modification. 


incorporation  as  joint-stock  companies,  or  of  small  groups  of 
rich  men  acting  in  combination,  with  such  unexpected  strength 
and  in  such  unexpected  ways  as  to  overshadow  individuals  and 
even  communities,  thus  demonstrating  that  "the  very  freedom 
of  association  which  men  sought  to  secure  by  law  when  they 
were  threatened  by  the  violence  of  potentates  may,  under  the 
shelter  of  the  law,  ripen  into  a  new  form  of  tyranny."  The 
greatest  obstacle  in  the  way  of  subjecting  corporate  power  in 
this  country  to  supervisory  state  control  has  arisen  out  of  the 
famous  judgment  delivered  in  1819  in  the  Dartmouth  College 
case,1  in  which  the  actual  controversy  turned  upon  the  ques- 
tion whether  the  charter  of  the  college  was  a  grant  of  political 
power  which  the  state  could  revoke  or  modify  at  pleasure,  or 
a  contract  for  the  security  and  disposition  of  property  be- 
stowed in  trust  for  charitable  purposes.  It  was  held  that  the 
act  of  government,  whether  it  be  an  act  of  the  Crown  or  of  the 
Legislature,  which  creates  a  corporation,  is  a  contract  between 
the  state  and  the  corporation,  and  that  all  the  franchises,  pow- 
ers, and  benefits  conferred  by  the  charter  become,  when  ac- 
cepted by  the  corporation,  contracts  within  the  constitutional 
clause.  "This  is  plainly  a  contract,"  said  Marshall,  C.  J.,  "to 
which  the  donors,  the  trustees,  and  the  Crown  (to  whose  rights 
and  obligations  New  Hampshire  succeeds)  were  the  original 
parties.  It  is  a  contract  for  the  security  and  disposition  of  pro- 
perty. It  is  a  contract  on  the  faith  of  which  real  and  personal 
estate  have  been  conveyed  to  the  corporation.  It  is  then  a  con- 
tract within  the  letter  of  the  Constitution  and  within  its  spirit 
also." 

The  first  important  modification  was  made  in  the  case  of 
The  Charles  River  Bridge  v.  The  Warren  Bridge2  (1837),  in 
which  it  was  held  that  the  courts  will  insist  upon  the  existence 
of  an  express  contract  by  the  state  with  a  corporation,  when 
relief  is  sought  against  subsequent  legislation,  in  order  to  guard 
against  the  evils  flowing  from  too  sweeping  an  abdication  of 
sovereign  powers  by  implication.  Despite  Chief  Justice  Wai  te's 
assertion  in  Stone  v.  Mississippi 3  (1880),  that  the  doctrines 
announced  in  the  Dartmouth  College  case  "have  become  so 
imbedded  in  the  jurisprudence  of  the  United  States  as  to  make 


1  Dartmouth   College   v.   Wood- 
ward, 4  Wheat.  518. 


2  II  Peters,  420. 
»  101  U.  S.  814. 


XIII.]  INTERSTATE  COMMERCE  413 

them,  to  all  intents  and  purposes,  a  part  of  the  Constitution  it- 
self, "the  fact  remains  that  in  that  very  case  the  Court  held  that 
no  legislature  can  curtail  the  rights  of  its  successors  to  make 
such  laws  as  they  may  deem  proper  in  matters  involving  the 
police  power,  which  extends  to  all  subjects  affecting  the  public  Police  power 
health  or  the  public  morals.  In  the  words  of  the  Court,  "the  excePted- 
power  of  governing  is  a  trust  committed  by  the  people  to 
the  government,  no  part  of  which  can  be  granted  away.  The 
people,  in  their  sovereign  capacity,  have  established  their  agen- 
cies for  the  preservation  of  the  public  health  and  the  public 
morals,  and  the  protection  of  public  and  private  rights.  These 
several  agencies  can  govern  according  to  their  discretion,  if 
within  the  scope  of  their  general  authority,  while  in  power,  but 
they  cannot  give  away  or  sell  the  discretion  of  those  that  are  to 
come  after  them,  in  respect  to  matters  the  government  of  which, 
from  the  very  nature  of  things,  must  'vary  with  varying  cir- 
cumstances.' .  .  .  The  contracts  which  the  Constitution  pro- 
tects are  those  that  relate  to  property  rights,  not  governmental"  "Property 
Thus  the  protection  of  the  contract  clause  of  the  Constitution  "rn. 
was  withdrawn  from  that  large  class  of  contracts  falling  within 
the  domain  of  the  police  power,  whose  limits  are  continually 
widening  as  the  judicial  mind  perceives  the  necessity  for  such 
an  extension.  In  Holden  v.  Hardy,1  the  extent  of  the  police  Holdent>. 
power  was  ably  defined  by  Mr.  Justice  Brown,  who,  after  say-  Hardy< 
ing  that  "this  power,  legitimately  exercised,  can  neither  be 
limited  by  contract  nor  bartered  away  by  legislation,"  held 
that  a  state  statute  limiting  the  period  of  employment  of  work- 
mgmen  in  underground  mines,  or  in  the  smelting,  or  reduction 
or  refining  of  ores  or  metals,  to  eight  hours  per  day  and  making 
its  violation  a  misdemeanor,  is  a  valid  exercise  of  the  power 
of  the  state. 

Walter  Bagehot  has  said  that  "a  constitution  is  a  collection  Three  over- 
of  political  means  for  political  ends,  and  if  you  admit  that  any  ^[ 
part  of  a  constitution  does  no  business,  or  that  a  simpler  ma-  tution. 
chine  would  do  equally  well  what  it  does,  you  admit  that  this 
part  of  the  constitution,  however  dignified  or  awful  it  may  be, 
is  nevertheless  in  truth  useless."  2  While  it  cannot  be  said  that 
any  part  of  our  Federal  Constitution  "does  no  business,"  it  can 
be  affirmed  that  there  are  three  of  its  organs  that  are  now 
1  169  U.  S.  366.  »  The  English  Constitution,  4-5. 


414 


Section  i, 

Fourteenth 

Amendment. 


Contract 
clause. 


Commerce 
clause. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Marshall's 
dream  in 
Cohens  v. 
Virginia. 


doing  so  much  more  than  any  others  that  each  stands  forth  as 
a  distinct  force  incased  in  a  distinct  and  growing  literature  of 
its  own.  Around  the  first  section  of  the  Fourteenth  Amend- 
ment, by  which  the  centre  of  gravity  of  the  Constitution  was 
shifted,  the  judges  and  text- writers  have  built  up  a  body  of 
learning  whose  essence  has  been  briefly  summarized  already.1 
Around  the  contract  clause,  which  provides  that  no  state  shall 
pass  any  "ex  post  facto  law,  or  law  impairing  the  obligation  of 
contracts,"  an  older  literature  has  grown  up  whose  beginnings 
are  to  be  found  in  the  Dartmouth  College  case.  Around  the 
third  and  last  force,  known  as  the  commerce  clause,  which  vests 
in  Congress  the  power  "to  regulate  commerce  with  foreign  na- 
tions, and  among  the  several  states,  and  with  the  Indian  tribes," 
a  literature  is  developing,  next  to  be  considered,  whose  begin- 
nings are  to  be  found  in  the  famous  case  of  Gibbons  v.  Ogden,2 
in  which  the  power  of  Congress  to  regulate  commerce  was  first 
defined.  It  is  no  exaggeration  to  say  that  the  three  streams  of 
judge-made  law  which  have  been  for  a  long  time  flowing  from 
the  Supreme  Court  into  our  national  life  through  the  channels 
just  described  have  been  and  are  the  unifying  and  systematizing 
forces  which  have  made  a  real  national  unity  possible.  Through 
their  reciprocal  action  has  been  realized  Marshall's  dream: 
"That  the  United  States  form,  for  many  and  for  most  import- 
ant purposes,  a  single  nation  has  not  yet  been  denied.  In  war 
we  are  one  people.  In  making  peace  we  are  one  people.  In  all 
commercial  relations  we  are  one  and  the  same  people.  In  many 
other  respects  the  American  people  are  one.  And  the  govern- 
ment which  is  alone  capable  of  controlling  and  managing  their 
interests  in  all  these  respects  is  the  government  of  the  Union. 
It  is  their  government,  and  in  that  character  they  have  no  other. 
America  has  chosen  to  be,  in  many  respects,  and  to  many  pur- 
poses, a  nation;  and  for  all  these  purposes  her  government  is 
complete;  to  all  these  objects  it  is  competent.  The  people  have 
declared  that  in  the  exercise  of  all  powers  given  for  these  objects 
it  is  supreme.  It  can,  then,  in  effecting  these  objects,  legiti- 
mately control  all  individuals  or  governments  within  the  Amer- 
ican territory.  The  constitution  and  laws  of  a  state,  so  far  as 
they  are  repugnant  to  the  Constitution  and  laws  of  the  United 
States,  are  absolutely  void.  These  states  are  constituent  parts 
1  See  above,  p.  348  sq.  2  9  Wheaton,  i. 


XIII.l  INTERSTATE  COMMERCE  415 

of  the  United  States.  They  are  members  of  one  great  empire, 
-  for  some  purposes  sovereign,  for  some  purposes  subordin- 
ate." * 

At  the  proper  place  emphasis  was  given  to  the  fact  that  the  Evolution  of 
meeting  of  the  Federal  Convention  of  1787  was  the  outcome  of 
the  meeting  in  the  year  before  of  the  Commercial  Convention 
at  Annapolis,  called  "to  take  into  consideration  the  trade  of 
the  United  States ;  to  examine  the  relative  situation  of  the  trade 
of  said  states;  to  consider  how  far  a  uniform  system  in  their 
commercial  regulations  may  be  necessary  to  their  common  in- 
terests and  their  permanent  harmony."2  The  two  overshadow- 
ing motives  that  brought  about  the  making  of  the  existing  Con- 
stitution are  to  be  found  in  the  effort  to  create  a  federal  assem- 
bly (i)  with  the  independent  power  to  tax;  (2)  with  the  power 
to  regulate  trade,  foreign  and  domestic.  How  perfectly  Charles 
Pinckney  appreciated  that  fact  is  manifest  from  his  draft,  which  Pinckney  draft, 
provides:  "Article  VI.  The  Legislature  of  the  United  States 
shall  have  power  to  lay  and  collect  taxes,  duties,  imposts,  and 
excises;  to  regulate  commerce  with  all  nations,  and  among  the 
several  states."  In  the  draft  made  for  use  in  the  Committee  of 
Detail,  Randolph  wrote  among  the  legislative  powers,  "2.  to 
regulate  commerce,"  and  to  that  Rutledge  added  the  words, 
"both  foreign  and  domes  tick,"  and  later  added,  as  a  marginal 
memorandum,  the  words,  "Indian  affairs."  The  committee  re- 
ported the  subject  in  the  following  language:  "to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  states," 
which  was  approved  by  the  Convention  on  August  16,  without  Action  of 
discussion.  When  on  August  29,  Charles  Pinckney  moved  to 
provide  that  "no  act  of  the  legislature  for  the  purpose  of  regu- 
lating the  commerce  of  the  United  States  with  foreign  powers, 
or  among  the  several  states,"  should  be  passed  without  the 
assent  of  two  thirds  3  of  each  House,  the  proposal  was  defeated. 
The  additional  words,  "and  with  the  Indian  tribes,"  were  not 
added  until  September  4,  on  motion  of  the  Committee  on  Un-  Additional 
finished  Portions.  When  during  the  discussion  on  the  I5th,  of  words,  Sept. 4- 
the  prohibition  on  the  states  from  laying  imposts,  tonnage,  etc., 
without  the  consent  of  Congress,  Gouverneur  Morris  expressed 

1  Cohens  v.  Virginia,  6  Wheaton,          3  For   Pinckney's    speeches,    see 
264.  Moore's  American  Eloquence,  i,  366, 

8  See  above,  p.  165  sq.  367. 


416 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Gibbons  ». 
Ogden,  1824. 


Monopoly 
backed  by  state 
power  yields 
to  federal 
power. 


the  opinion  that  the  states  were  not  restrained  by  the  Consti- 
tution from  laying  tonnage  duties,  Madison  said  that  depended 
on  the  extent  of  the  power  to  regulate  commerce,  which  is  a 
"vague  term,  but  seems  to  exclude  this  power  of  the  states."1 
When  in  1824  the  time  came  for  the  Supreme  Court  to  con- 
strue the  commerce  clause  in  the  famous  case  of  Gibbons  v. 
Ogden,2  it  appeared  that  Chancellor  Kent  had  granted  an  in- 
junction, sustained  by  New  York's  highest  appellate  court,  re- 
straining Gibbons  from  navigating  the  Hudson  River  by  steam- 
boats only  licensed  for  the  coasting  trade  under  an  Act  of  Con- 
gress, on  the  ground  that  he  was  thereby  infringing  the  exclu- 
sive right  granted  by  the  State  of  New  York  to  Robert  Fulton 
and  Livingston,  and  by  them  assigned  to  Ogden,  to  navigate  all 
the  waters  of  the  state  with  vessels  moved  by  steam.  Thus  it 
came  to  pass  that  on  the  very  threshold  of  this  great  subject 
federal  power,  as  the  representative  of  individualism,  met  the 
potent  outcome  of  the  new  industrialism  which,  with  its  inven- 
tions and  technical  improvements  advanced  by  the  applica- 
tion of  steam,  began  to  reach  its  culminating  point  toward  the 
close  of  the  eighteenth  century.  The  claim  in  favor  of  mono- 
poly, backed  by  state  power,  went  down  before  a  judgment 
holding  that  Congress  had  exclusive  authority  to  regulate  com- 
merce in  all  its  forms,  on  all  the  navigable  waters  of  the  United 
States,  including  bays,  rivers,  and  harbors,  free  from  monopoly, 
restraint,  or  interference  by  state  legislation ;  that  the  term  com- 
merce meant,  not  only  traffic,  but  intercourse ;  that  it  included 
navigation ;  therefore  the  power  to  regulate  commerce  included 
the  power  to  regulate  navigation.  It  was  admitted  that  it  did 
not  include  commerce  purely  internal ;  and  the  point  was  left 
undecided  whether  the  power  of  Congress  to  regulate  commerce 
was  exclusive  only  when  exercised,  or  whether  a  state  might  ex- 
ercise it  in  the  absence  of  action  by  Congress.  Thus  was  estab- 
lished "that  freedom  of  commerce  between  the  states,"  which, 

1  Cf.    Meigs,   The  Growth  of  the 
Constitution,  135-138. 

2  9  Wheaton,  i.  Wirt  wrote  to  a 
friend:  "To-morrow  week  will  come 
on   the   great   steamboat   question 
from  New  York.    Emmett  and  Oak- 


ley on  one  side,  Webster  and  myself 
on  the  other.  Come  down  and  hear  it. 
Emmett's  whole  soul  is  in  the  case, 


and  he  will  stretch  all  his  powers. 
Oakley  is  said  to  be  one  of  the  first 
logicians  of  the  age;  as  much  a  Pho- 
cion  as  Emmett  is  a  Themistocles, 
and  Webster  is  as  ambitious  asCaesar. 
He  will  not  be  outdone  by  any  man 
if  it  is  within  the  compass  of  his 
power  to  avoid  it."  Kennedy's  Life 
of  Wirt,  ii,  142. 


XIII.l  INTERSTATE  COMMERCE  417 

in  the  words  of  Mr.  Justice  Brewer,  "perhaps  more  than  any 
one  thing,  has  wrought  into  the  minds  of  the  people  the  great 
thought  of  a  single  controlling  nationality." 

When  in  1827  arose  the  case  of  Brown  v.  Maryland,1  involv-  Brown  v. 
ing  the  regulation  of  foreign  commerce,  and  the  power  of  a  jg^* 
state  to  interfere  with  it  through  taxation,  it  was  held  "that 
when  the  importer  has  so  acted  upon  a  thing  imported  that  it 
has  become  incorporated  and  mixed  up  with  the  mass  of  pro- 
perty in  the  country,  it  has  perhaps  lost  its  distinctive  char- 
acter as  an  import,  and  has  become  subject  to  the  taxing  power 
of  the  state;  but  while  remaining  the  property  of  the  importer 
in  his  warehouse  in  the  original  form  or  package  in  which  it  was 
imported,  a  tax  upon  it  is  too  plainly  a  duty  on  imports  to 
escape  the  prohibition  in  the  Constitution."  In  1847  arose  the  License  cases, 
License  cases,2  in  the  first  two  of  which  the  construction  of  the  l847' 
commerce  clause  was  involved  with  the  question  whether,  in 
the  presence  of  an  Act  of  Congress  authorizing  the  importation 
from  foreign  countries  of  wines  and  spirits,  a  state  might  as- 
sume to  prohibit  or  regulate  their  sale  at  retail ;  and  in  the  last 
with  the  question  whether,  in  the  absence  of  an  Act  of  Congress 
to  regulate  such  importation,  a  state  might  prohibit  by  law  the 
sale  of  liquor  imported  from  another  state.  All  of  the  state 
laws  under  review  were  held  to  be  constitutional  because  not  in 
conflict  with  any  Act  of  Congress.  In  the  first  two  cases  Chief 
Justice  Taney  contended  that  the  state  laws  were  so  framed  as 
to  act  upon  the  article  after  it  had  passed  the  line  of  foreign 
commerce  in  the  hands  of  the  dealer.  In  the  last,  a  diversity 
of  opinion  arose  as  to  the  question  whether,  in  the  absence  of 
an  Act  of  Congress  regulating  commerce  between  the  states,  all 
state  laws  on  the  subject  were  null  and  void.  In  other  words, 
whether  the  mere  grant  of  power  to  Congress  could  be  con- 
strued as  an  absolute  prohibition  of  the  exercise  of  any  power 
over  the  same  subject  by  the  states.  In  the  opinion  of  the  Chief  Opinion  of 
Justice,  despite  such  a  grant,  "the  state  may,  nevertheless,  for 
the  safety  and  convenience  of  trade,  or  for  the  protection  of  the 
health  of  its  citizens,  make  regulations  of  commerce  for  its  own 
ports  and  harbors,  and  for  its  own  territory;  and  such  regula- 
tions are  valid,  unless  they  come  in  conflict  with  the  laws  of 

1  12  Wheaton,  419.  Fletcher  v.  Rhode  Island,  Peirce  v. 

•  Thurlow      v.       Massachusetts,      New  Hampshire,  5  Howard,  504. 


4i8 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Passenger 
1849- 


Exclusive 
control  by 
Congress. 


Pilots  and 
pilotage. 


Congress."  The  decision  in  Peirce  v.  New  Hampshire  was, 
however,  distinctly  overruled  in  Leisy  v.  Hardin,1  known  as 
the  Original  Package  case,  in  which  it  was  held  that,  as  the 
grant  of  power  to  regulate  commerce  among  the  states  is 
exclusive,  "the  states  cannot  exercise  that  power  without  the 
assent  of  Congress;  and,  in  the  absence  of  legislation,  it  is  left 
to  the  courts  to  determine  when  state  action  does  or  does  not 
amount  to  such  exercise,  or,  in  other  words,  what  is  or  is 
not  a  regulation  of  such  commerce."  In  Smith  v.  Turner  and 
Norris  v.  Boston,  known  as  the  Passenger  cases  2  (1849),  the 
construction  of  the  commerce  clause  of  the  Constitution  was 
again  involved.  The  precise  question  presented  was  whether 
that  clause  was  violated  by  a  law  of  the  State  of  New  York 
imposing  a  tax  upon  the  masters  of  vessels  arriving  from  a 
foreign  port,  for  each  steerage  passenger  and  each  cabin 
passenger,  and  upon  the  masters  of  coasting  vessels  for  each 
passenger.  The  Court  was  thus  again  called  upon  to  deter- 
mine whether  the  power  to  regulate  commerce  was  vested 
exclusively  in  Congress ;  and  if  so,  whether  a  tax  upon  persons 
was  a  regulation  of  commerce.  The  result  was  that  five  judges, 
opposed  by  four,  declared  the  laws  null  and  void,  in  opinions 
which  disclosed  a  marked  conflict  of  view  even  among  the 
judges  who  united  in  the  prevailing  opinion.  Such  conflicts 
may  now  be  considered  as  removed  by  more  recent  decisions, 
in  which  it  has  been  held  in  substance  that  the  regulation  of 
foreign  commerce  is  exclusively  within  the  control  of  Congress, 
and  that  no  state  can  attempt  its  regulation  even  though  there 
be  no  Act  of  Congress  in  existence  with  which  such  a  regula- 
tion would  conflict.3  In  Cooley  v.  Port  Wardens 4  a  Pennsyl- 
vania statute  regulating  pilots  and  pilotage,  and  providing  that 
a  vessel  neglecting  or  refusing  to  take  a  pilot  should  pay  and 
forfeit  certain  sums  to  a  society  for  the  relief  of  pilots,  was  held 
not  to  be  in  conflict  with  the  article  of  the  Federal  Constitu- 
tion prohibiting  states  from  imposing  imposts  and  duties  on 
imports,  exports,  and  tonnage,  because  those  subjects  are  dis- 


1  135  U.  S.  100  (1889). 

2  7  Howard,  283. 

»  Wabash,  St.  L.  &  P.  R.  Co.  v. 
Illinois,  118  U.  S.  557;  Fargo  v. 
Michigan,  121  U.  S.  230;  McCall  v. 
California,  136  U.  S.  no. 


4  12  Howard,  300;  Huus  v.  New 
York  &  P.  R.  SS.  Co.,  182  U.  S.  393; 
Homer  Ramsdell  Transp.  Co.  v.  La 
Compagnie  Generate  Transatlan- 
tique,  182  U.  S.  414. 


XIIL]  INTERSTATE  COMMERCE  419 

tinct  from  fees  and  charges  for  pilotage,  and  from  the  penal- 
ties by  which  commercial  states  enforce  their  pilotage  laws.  In 
1877,  the  Supreme  Court,  in  citing  and  still  further  develop- 
ing the  principles  announced  in  Gibbons  v.  Ogden  fifty-three 
years  before,  held  in  Pensacola  Teleg.  Co.  v.  Western  Union 
Teleg.  Co.1  that  a  telegraph  company  bears  the  same  relation 
to  commerce  as  a  carrier  of  goods,  and  that  the  powers  of  Con- 
gress are  not  confined  to  the  instrumentalities  of  commerce 
known  of  or  in  use  when  the  Constitution  was  adopted.  "The 
powers  of  Congress,"  said  the  Court,  "are  not  confined  to  the  Control  of 
instrumentalities  known  or  in  use  when  the  Constitution  was  tele&raPh 
adopted,  but  keep  pace  with  the  progress  of  the  country." 
In  1887  Mr.  Justice  Bradley,  in  summing  up  the  cases  on  that 
subject,  said  in  Leloup  v.  Port  of  Mobile  2  that  "no  state  has 
the  right  to  lay  a  tax  on  interstate  commerce  in  any  form  what- 
ever by  way  of  duties  laid  on  the  transportation  of  the  subjects 
of  that  commerce,  or  on  the  receipts  derived  from  that  trans- 
portation, or  on  the  occupation  or  business  of  carrying  it  on, 
and  the  reason  is  that  such  taxation  is  a  burden  on  that  com- 
merce, and  amounts  to  a  regulation  of  it  which  belongs  solely 
to  Congress."  As  a  final  extension,  perhaps,  of  the  doctrine  Final 
laid  down  in  The  Genesee  Chief  v.  Fitzhugh  (1851),  it  was  held  ^^Sfty 
in  The  Robert  W.  Parsons  3  (1903),  that  the  Erie  Canal,  jurisdiction, 
which,  though  lying  wholly  within  the  State  of  New  York, 
forms  a  part  of  a  continuous  highway  for  interstate  and  foreign 
commerce  by  connecting  Lake  Erie  with  the  Hudson  River,  is 
a  navigable  water  of  the  United  States  as  contradistinguished 
from  a  navigable  water  of  the  state. 

An  attempt  has  now  been  made  to  outline  the  origin  and  Interstate 
growth  of  the  mighty  power  vested  in  Congress  to  regulate  ^^^ 
commerce,  foreign  and  domestic,  down  to  its  enactment  of  "An  February  4, 
Act  to  Regulate  Commerce,"  approved  February  4,  1887,  by  l887- 
which  the  Interstate   Commerce   Commission  was  created. 
When  that  act  was  passed  the  case  of  California  v.  Central 
Pacific  R.  Co.,4  was  pending,  in  which  it  was  held  that  "the 
power  to  construct,  or  to  authorize  individuals  or  corporations 
to  construct,  national  highways  and  bridges  from  state  to  state, 
is  essential  to  the  complete  control  and  regulation  of  interstate 


1  96  U.  S.  i.  *  191  U.  S.  17. 

2  127  U.  S.  640.  «  127  U.  S.  i. 


420 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Water  trans- 
portation 
eclipsed  by 
steam. 


Right  of  Con- 
gress to  grant 
charters  to 
railroads. 


commerce.  Without  authority  in  Congress  to  establish  and 
maintain  such  highways  and  bridges,  it  would  be  without  au- 
thority to  regulate  one  of  the  most  important  adjuncts  to  com- 
merce. This  power  in  former  times  was  exerted  to  a  very  lim- 
ited extent,  the  Cumberland  or  National  Road  being  the  most 
notable  instance.  Its  exertion  was  but  little  called  for,  as  com- 
merce was  then  mostly  conducted  by  water,  and  many  of  our 
statesmen  entertained  doubts  as  to  the  existence  of  the  power 
to  establish  ways  of  communication  by  land.  But  since,  in  con- 
sequence of  the  expansion  of  the  country,  the  multiplication  of 
its  products,  and  the  invention  of  railroads  and  locomotion  by 
steam,  land  transportation  has  so  vastly  increased,  a  sounder 
consideration  of  the  subject  has  prevailed  and  led  to  the  con- 
clusion that  Congress  has  plenary  power  over  the  whole  sub- 
ject. Of  course  the  authority  of  Congress  over  the  territories 
of  the  United  States,  and  its  power  to  grant  franchises  exer- 
cisable  therein,  are,  and  ever  have  been,  undoubted.  But  the 
wider  power  was  very  freely  exercised,  and  much  to  the  gen- 
eral satisfaction,  in  the  creation  of  the  vast  system  of  railroads 
connecting  the  East  with  the  Pacific,  traversing  states  as  well 
as  territories,  and  employing  the  agency  of  the  state  as  well  as 
federal  corporations."  1  Thus  was  finally  settled  the  right  of 
Congress  to  grant  charters  for  the  construction  of  railroads 
in  any  state  without  its  consent,  a  right  never  asserted  prior  to 
the  Act  to  facilitate  commercial,  postal,  and  military  commun- 
ication among  the  several  states,  approved  June  15,  i866.2  By 
that  Act  was  greatly  accelerated  the  process  through  which 
commerce,  including  transportation,  has  been  revolutionized 
by  the  establishment  and  rapid  growth  of  inland  facilities  of 
distribution  and  sharpness  of  competition  between  trade 
centres,  incident  to  the  annihilation  of  distance  through  the 
increased  speed  of  trains,  as  well  as  by  the  greatly  increased 
capacity  of  engines  and  cars.  It  was  the  establishment  of  the 
great  railway  systems  of  continuous  lines,  unknown  in  the  first 
decades  of  railway  construction,  that  forced  Congress  in  1887 
to  organize  the  regulating  power  which  down  to  that  time  lay 


1  See  Pacific  R.  R.  Removal  Cases, 
115  U.  S.  14-18. 

2  14  Stat.  66.  See  A  Study  of  the 
Power  of  the  Congress  over  Railroads, 


by  E.  A.  Mosely,  Secretary  of  the 
Interstate  Commerce  Commission, 
March  23,  1907. 


XIII J  INTERSTATE  COMMERCE  421 

practically  dormant.  In  Texas  &  P.  R.  Co.  v.  Interstate  Com- 
merce Commission,1  it  was  held  that  the  Commission  created 
by  the  Act  of  1887  is  a  body  corporate,  with  legal  capacity  to 
be  a  party  plaintiff  or  defendant  in  the  federal  courts ;  and  that 
it  may  apply  by  petition  to  the  judicial  power  for  the  enforce- 
ment of  its  orders.  In  defining  its  jurisdiction  the  Court  said:  Jurisdiction 
"Having  thus  included  in  its  scope  the  entire  commerce  of  the  commerce*6 
United  States,  foreign  and  interstate,  and  subjected  to  its  reg-  Commission, 
ulations  all  carriers  engaged  in  the  transportation  of  passen- 
gers or  property,  by  whatever  instrumentalities  of  shipment 
or  carriage,  the  Act  proceeds  to  declare  that '  all  charges  made 
for  any  service  rendered  or  to  be  rendered  in  the  transporta- 
tion of  passengers  or  property  as  aforesaid,  or  in  connection 
therewith,  or  for  the  receiving,  delivering,  storage,  or  handling 
of  such  property,  shall  be  reasonable  and  just,  and  every  un- 
just and  unreasonable  charge  for  such  service  is  prohibited 
and  declared  to  be  unlawful.'  The  significance  of  this  language, 
in  thus  extending  the  judgment  of  the  tribunal  established 
to  enforce  the  provisions  of  the  Act  to  the  entire  service  to  be 
performed  by  carriers,  is  obvious." 

Prior  to  the  Act  of  1887  railroad  traffic  was  regulated  by  Prior  regula- 
the  rules  of  the  common  law  applicable  to  common  carriers.2 
In  the  first  case  in  which  the  Act  of  1887  was  construed, 
the  Court  said  that  prior  to  its  enactment  "railway  traffic  in 
this  country  was  regulated  by  the  principles  of  the  common 
law  applicable  to  common  carriers,  which  demanded  little 
more  than  that  they  should  carry  for  all  persons  who  applied, 
in  the  order  in  which  the  goods  were  delivered  at  the  particular 
station,  and  that  their  charges  for  transportation  should  be 
reasonable.  It  was  even  doubted  whether  they  were  bound  to 
make  the  same  charge  to  all  persons  for  the  same  service.  .  .  . 
The  principal  objects  of  the  Interstate  Commerce  Act  were  to  Objects  of  Act 
secure  just  and  reasonable  charges  for  transportation;  to  pro-  Jg 
hibit  unjust  discriminations  in  the  rendition  of  like  services 
under  similar  circumstances  and  conditions ;  to  prevent  undue 
or  unreasonable  preferences  to  persons,  corporations,  or  local- 
ities; to  prohibit  greater  compensation  for  a  shorter  than  for  a 
longer  distance  over  the  same  line ;  and  to  abolish  combinations 
for  the  pooling  of  freights.  It  was  not  designed,  however,  to 
1  162  U.  S.  197.  2  Munn  v.  Illinois,  94  U.  S.  1 13. 


422 


THE  AMERICAN  CONSTITUTION 


[Ci 


Judicial  re- 
view of  rates 
fixed  by  legis- 
lature or  com- 
mission. 


Right  of  Com- 
mission to  pre- 
scribe rates; 


prevent  competition  between  different  roads,  or  to  interfere 
with  the  customary  arrangements  made  by  railway  companies 
for  reduced  fares  in  consideration  of  increased  mileage,  where 
such  reduction  did  not  operate  as  an  unjust  discrimination 
against  other  persons  traveling  over  the  road.  In  other  words, 
it  was  not  to  ignore  the  principle  that  one  can  sell  at  wholesale 
cheaper  than  at  retail."  1 

In  Reagan  v.  Farmers'  Loan  and  Trust  Co.,2  it  was  held  that 
although  the  formation  of  a  tariff  of  charges  for  transportation 
by  a  common  carrier  is  a  legislative  or  ministerial  rather  than 
a  judicial  function,  the  Court  may  decide  whether  or  not  such 
rates  are  unjust  and  unreasonable  and  such  as  to  work  a  practi- 
cal destruction  of  rights  of  property,  and  if  found  so  to  be  may 
restrain  their  operation ;  that  the  fixing  and  enforcement  by  a 
railroad  commission  of  unjust  and  unreasonable  rates  for  trans- 
portation by  railroad  companies  is  an  unconstitutional  denial 
of  the  equal  protection  of  the  laws;  that  a  schedule  of  rates 
made  by  railroad  commissioners  being  challenged  as  a  whole, 
the  Court  must  either  condemn  or  sustain  it  as  a  whole  and  can- 
not rearrange  it  or  prepare  a  new  schedule.  In  that  case  the 
Court  said  in  express  terms:  "The  courts  are  not  authorized  to 
revise  or  change  the  body  of  rates  imposed  by  a  legislature  or  a 
commission ;  they  do  not  determine  whether  one  rate  is  prefer- 
able to  another,  or  what  under  all  circumstances  would  be  fair 
and  reasonable  as  between  the  carriers  and  the  shippers ;  they 
do  not  engage  in  any  mere  administrative  work ;  but  still  there 
can  be  no  doubt  of  their  power  and  duty  to  inquire  whether  a 
body  of  rates  prescribed  by  a  legislature  or  a  commission  is  un- 
just and  unreasonable,  and  such  as  to  work  a  practical  destruc- 
tion to  rights  of  property,  and  if  found  so  to  be,  to  restrain  its 
operation." 

After  the  Commission  had  undertaken  for  many  years  to 
prescribe  rates  for  the  future,  under  the  terms  of  the  original 
Act,  its  right  to  do  so  was  questioned  in  Interstate  Commerce 
Commission  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,3  in  which 
case  the  Court  held  that  the  Commission  had  no  such  right. 
"It  will  be  perceived,"  say  the  Court,  "that  in  this  case  the 
Interstate  Commerce  Commission  assumed  the  right  to  pre- 

1  Interstate  Commerce  Com.  v.          2  154  U.  S.  362. 
Baltimore  &  O.  R.  Co.,  145  U.  S.  263.          «  167  U.  S.  479. 


XIII.]  INTERSTATE  COMMERCE  423 

scribe  rules  which  should  control  in  the  future,  and  their 
application  to  the  Court  was  for  a  mandamus  to  compel  the 
companies  to  comply  with  their  decision ;  that  is,  to  abide  by 
their  legislative  determination  as  to  the  maximum  rates  to  be 
observed  in  the  future.  Nowhere  in  the  Interstate  Commerce 
Commission  Act  do  we  find  words  similar  to  those  in  the  stat- 
utes referred  to.  ...  The  power,  therefore,  is  not  expressly 
given."  It  was  therefore  held  that  it  will  not  be  presumed 
that  Congress  has  transferred  to  any  administrative  body  the 
power  to  prescribe  a  tariff  of  rates  for  carriage  by  a  common 
carrier,  if  that  power  has  to  be  inferred  from  doubtful  and 
uncertain  language;  that  the  incorporation  into  the  Act  of  the 
common-law  obligation  resting  upon  the  carrier  to  make  all  its 
charges  reasonable  and  just,  and  directing  the  Commission  to 
execute  and  enforce  the  provisions  of  the  Act,  do  not  by  impli- 
cation carry  to  the  Commission  or  invest  it  with  power  to 
exercise  the  legislative  function  of  prescribing  rates  which  shall 
control  in  the  future.  In  a  word,  "it  is  one  thing  to  inquire 
whether  the  rates  which  have  been  charged  and  collected  are 
reasonable,  —  that  is  a  judicial  act;  but  an  entirely  different  has  judicial 
thing  to  prescribe  rates  which  shall  be  charged  in  the  future,— 
that  is  a  legislative  act." 

Finally  the  Court  declared  that  the  important  duties  of  the 
Commission  in  respect  to  railroad  rates  include  the  duty  of  in- 
quiry as  to  the  management  of  the  business,  with  the  right  to 
compel  complete  and  full  information  concerning  it,  and  the 
duty  of  seeing  that  there  is  no  violation  of  the  long  and  short 
haul  clause  of  the  Act,  or  any  prohibited  discrimination,  rebate, 
or  other  device  to  give  undue  preferences,  and  also  that  the 
publicity  required  by  section  6  is  observed.    It  is  now  firmly 
settled  that  the  Federal  Government  has  exclusive  power  to 
regulate  interstate  commerce,  and  that  no  state  can  make  a 
valid  regulation  affecting  interstate  transportation  of  passen- 
gers and  property.  The  freedom  of  such  commerce  from  state  Freedom  of 
control  was  definitely  settled  as  to  the  taxing  power  of  the  state  J^^^  • 
in  the  case  of  the  State  Freight  Tax  in  1873; l  and  later  in  from  state 
1887,  in  the  case  of  Robbins  v.  Shelby  County  Taxing  District,2  controh 
was  declared   the   freedom  of  interstate  commerce  with  re- 
spect to  the  police  power  of  the  state  to  control  the  liquor 
1  15  Wallace,  232.  *  120  U.  S.  623. 


424 


THE  AMERICAN  CONSTITUTION 


[CH. 


Intrastate 
commerce 
defined. 


State  has 
no  power 
to  destroy. 


Extent  of  its 
police  power. 


traffic.  In  Covington,  etc.,  Bridge  Co.  v.  Kentucky1  it  was  held 
that  an  interstate  bridge  was  an  instrument  of  interstate  com- 
merce whereon  Congress  alone  possessed  the  power  to  enact 
a  uniform  schedule  of  charges ;  and  the  same  principle  was  ap- 
plied in  holding  invalid  the  dispensary  laws  of  South  Carolina 
regulating  the  sale  of  intoxicating  liquors  and  prohibiting  their 
importation.2 

In  Louisville,  N.  O.  &  T.  R.  Co.  v.  Mississippi,3  the  line  be- 
tween interstate  and  intrastate  commerce  was  thus  drawn:  " It 
has  often  been  held  in  this  Court,  that  there  can  be  no  doubt 
about  it,  that  there  is  a  commerce  wholly  within  the  state, 
which  is  not  subject  to  the  constitutional  provision,  and  the 
distinction  between  commerce  among  the  states  and  the  other 
class  of  commerce  between  the  citizens  of  a  single  state,  and 
conducted  within  its  limits  exclusively,  is  one  which  has  been 
fully  recognized  in  this  Court,  although  it  may  not  be  always 
easy,  where  the  lines  of  these  classes  approach  each  other,  to 
distinguish  between  the  one  and  the  other." 4  Reference  is  then 
made  to  Stone  v.  Farmers'  Loan  and  Trust  Co.,5  in  which  it  was 
held  that  a  state  has  power  to  limit  railroad  charges  for  trans- 
portation within  its  own  jurisdiction,  unless  restrained  by  con- 
tract, or  the  power  of  Congress  to  regulate  foreign  or  interstate 
commerce ;  and  that  the  power  can  only  be  bargained  away,  if 
at  all,  by  words  of  positive  grant,  or  their  equivalent.  It  was 
said,  however,  that  "this  power  to  regulate  is  not  a  power  to 
destroy,  and  limitation  is  not  the  equivalent  of  confiscation. 
Under  pretense  of  regulating  fares  and  freights,  the  state  can- 
not require  a  railroad  corporation  to  carry  persons  or  property 
without  reward ;  neither  can  it  do  that  which  in  law  amounts 
to  a  taking  of  private  property  for  public  use  without  just  com- 
pensation, or  without  due  process  of  law."  In  Munn  v.  Illinois, 
a  statute  of  that  state  fixing  the  maximum  of  charges  for  the 
storage  of  grain  in  warehouses  in  Chicago  and  other  places  in 
the  state  was  held  to  be  valid,  as  a  mere  common-law  regula- 
tion of  trade  or  of  business,  not  in  violation  of  the  limitations 
upon  the  legislative  power  of  the  state  imposed  by  the  Federal 


1  154  U.  S.  204. 

8  Scott  v.  Donald,  165  U.  S.  58; 
Vance  v.  Vandercook,  170  U.  S.  439. 
»  133  U.  S.  587. 


4  The  Daniel  Ball,  TO  Wall.  557; 
Hall  v.  De  Cuir,  95  U.  S.  485;  W.  U. 
Tel.  Co.  v.  Texas,  105  U.  S.  460. 

6  II6U.  S.  307. 


XIII.]  INTERSTATE  COMMERCE  425 

Constitution.  It  was  also  held  that  citizens  must  so  use  their 
property  as  not  to  injure  others;  that  the  regulation  of  the 
price  of  the  use  of  property  is  not  necessarily  a  deprivation; 
that  property,  such  as  Chicago  grain  warehouses,  affected  with 
a  public  interest,  is  subject  to  public  regulation;  that  the  legis- 
lature is  the  judge  of  the  reasonableness  of  the  regulation  of 
rates  and  charges;  that  it  is  the  judge  of  the  propriety  of  its 
interference;  that  the  regulation  of  Chicago  elevators  is  not 
a  regulation  of  interstate  commerce.1  In  the  subsequent  case 
of  Chicago,  etc.,  R.  R.  Co.  v.  Minnesota,2  three  of  the  justices 
dissented  on  the  ground  that  the  conclusions  of  the  majority 
practically  overruled  the  case  of  Munn  v.  Illinois.  Mr.  Justice 
Blatchford,  who  delivered  the  opinion  of  the  Court,  said :  "The  Subsequent 
question  of  the  reasonableness  of  a  rate  of  charge  for  transport-  E 
ation  by  a  railroad  company,  involving  as  it  does  the  element 
of  reasonableness,  both  as  regards  the  company  and  as  regards 
the  public,  is  eminently  a  question  for  judicial  investigation, 
requiring  due  process  of  law  for  its  determination."  That 
dictum  of  the  prevailing  opinion  in  the  Minnesota  case  pointed 
the  way  to  further  modifications  in  the  rule  which  Munn  v. 
Illinois  had  established.  The  proposition,  that  the  reasonable- 
ness of  rates  established  is  a  judicial  question,  has  since  been 
approved  and  has  become  the  settled  rule.3 

In  Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,4  an  Illinois  statute  estab- 
lishing a  reasonable  maximum  rate  of  charge  for  the  transport- 
ation of  passengers  and  freight  on  the  different  railroads  of  the 
state  was  held  not  to  conflict  either  with  the  Federal  Constitu- 
tion or  that  of  the  state,  as  railroad  companies  engaged  in  a 
public  employment  affecting  the  public  interest  are  subject  to 
legislative  control  as  to  their  rates  of  fare  and  freight,  un- 
less protected  by  their  charters.  An  important  statement  of  Police  power 
the  relation  between  the  police  power  of  a  state  and  the  power  of  state  and 

.  .       commerce 

of  Congress  to  regulate  interstate  commerce  is  contained  in  power  of 
Louisville  &  N.  R.  Co.  v.  Kentucky,6  wherein  it  was  held  that  Congress. 
the  prohibition  by  a  state  of  the  consolidation  of  parallel  and 
competing  lines  of  railway  is  not  interference  with  the  power  of 

1  94  U.  S.  113.  terstate  Commerce  Com.  v.  Railway 

2  134  U.  S.  461.  Co.,  167  U.  S.  500. 
*  Reagan   v.   Farmers'    Loan    &          4  94  U.  S.  155. 

Trust  Company,  154  U.  S.  397;  In-          6  161  U.  S.  677. 


426 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Separate  ac- 

conimodations 

on  account  of 
race. 


Permissible 


State 


Congress  over  interstate  commerce;  that  whatever  is  contrary 
to  public  policy,  or  inimical  to  the  public  interest,  is  subject  to 
the  police  power  of  the  state  and  within  legislative  control, 
in  the  exercise  of  which  the  legislature  is  vested  with  a  large 
discretion,  beyond  the  reach  of  judicial  inquiry,  if  it  is  exercised 
bona  fide  for  the  protection  of  the  public. 

In  Plessy  v.  Ferguson1  it  was  held  that  the  Thirteenth 
Amendment,  abolishing  slavery  and  involuntary  servitude,  is 
not  violated  by  a  state  statute  requiring  separate  accommoda- 
tions  for  white  and  colored  persons  on  railroads  ;  that  a  state 

•  i  •         r  •  i  •  fit* 

statute  providing  for  separate  railway  carriages  for  the  white 
and  colored  races  by  railways  carrying  passengers  in  their 
coaches,  in  the  state,  and  the  assignment  of  passengers  to 
coaches  according  to  their  race,  does  not  deprive  a  colored 
person  of  any  right  under  the  Fourteenth  Amendment. 

The  privilege  tax  imposed  by  Mississippi  on  sleeping  and 
Palace  car  companies  carrying  passengers  from  one  point  to 
another  within  the  state  cannot  be  deemed  an  unconstitutional 
regulation  of  commerce.  The  company  cannot  complain  of 
being  taxed  for  the  privilege  of  doing  a  local  business  which  it 
is  free  to  renounce.2  A  railroad  corporation  largely  engaged  in 
interstate  commerce  is  amenable  to  state  regulation  and  taxa- 
tion as  to  any  of  its  service  which  is  wholly  performed  within 
the  state,  and  not  as  a  part  of  interstate  service.3  A  state  tax 
on  the  property  within  the  state  belonging  to  a  foreign  tele- 
graph corporation,  the  value  of  which  was  determined  by  re- 
garding it  as  part  of  a  system  operated  in  other  states,  is  not 
invalid  because  such  corporation  is  engaged  in  interstate 
business.4 

In  Patapsco  Guano  Co.  v.  North  Carolina  Board  of  Agricul- 
ture,5  it  was  held  that  interstate  as  well  as  foreign  commerce  is 
subject  to  state  inspection  laws;  that  such  laws  are  valid  when 
they  act  on  a  subject  before  it  becomes  an  article  of  commerce, 
and  also  when,  although  operating  on  articles  brought  from  one 
state  into  another,  they  provide  for  inspection  in  the  exercise 
of  that  power  of  self-protection  commonly  called  the  police 


1  163  U.  S.  537. 

1  Pullman  Co.  t;.  Adams,  189!!.  SL 
420. 

1  New  York  ex  rel.  Penn.  R.  Co. 


v.  Knight,  192  U.  S.  21. 

4  Western  Union  Telegraph  Co. 
v.  Missouri,  190  U.  S.  412. 

6  171  U.  S.  343. 


XIIL]  INTERSTATE  COMMERCE  427 

power.  In  Kimmish  v.  Ball,1  it  was  held  that  the  statute  of 
Iowa,  providing  that  any  person  who  has  in  his  possession  in 
that  state  any  Texas  cattle  which  have  not  been  wintered  north 
shall  be  liable  for  any  damages  that  may  accrue  from  allowing 
such  cattle  to  run  at  large,  and  thereby  spreading  the  disease 
known  as  Texas  Fever,  is  not  in  conflict  with  the  paramount 
authority  of  Congress  to  regulate  interstate  commerce. 

In  Grossman  v.  Lurman,2  it  was  held  that  the  New  York  Pure  food  acts. 
statute  forbidding  the  sale  of  adulterated  food  and  drugs  is  not 
repugnant  to  the  commerce  clause,  but  is  a  valid  exercise  of 
the  police  power  of  the  state.  Congress  has  not  deprived  the 
states  of  their  police  power  to  legislate  for  the  prevention  of 
the  sale  of  articles  of  food  so  adulterated  as  to  come  within 
valid  prohibitions  of  the  statute. 

In  Bartemeyer  v.  Iowa,3  it  was  held  that  the  right  to  sell  in-  Liquor  traffic. 
toxicating  liquors  is  not  one  of  the  privileges  and  immunities 
of  a  citizen  of  the  United  States  which,  by  the  Fourteenth 
Amendment,  a  state  is  forbidden  to  abridge  ;  and  at  a  little  later 
day  it  was  held  in  Mugler  v.  Kansas4  that  a  state  law  prohibit- 
ing the  manufacture  within  its  limits  of  intoxicating  liquors, 
to  be  sold  and  bartered  for  general  use  as  a  beverage,  was  not 
necessarily  an  infraction  of  the  Constitution,  because  the 
Fourteenth  Amendment  does  not  deprive  a  state  of  the  police 
power  to  determine  primarily  what  measures  are  needful  for 
the  protection  of  the  public  morals,  health,  and  safety.  It  was 
held,  however,  in  Bowman  v.  Chicago  &  Northwestern  R.  Co.5 
that  a  provision  of  the  Code  of  Iowa  forbidding  any  common 
carrier  to  bring  within  that  state  any  intoxicating  liquors  from 
any  other  state  or  territory,  without  first  having  the  certificate 
therein  required,  is  a  regulation  of  commerce  among  the  states 
and  is  void,  as  repugnant  to  the  Federal  Constitution;  such  a 
statute  is  not  an  inspection  law,  nor  a  quarantine  or  sanitary 
law,  and  is  not  a  legitimate  exercise  of  police  power  by  the  state. 
Mr.  Justice  Field,  in  his  concurring  opinion,  said  :  "  That  where  Justice  Field 
the  subject  upon  which  Congress  can  act  under  its  commercial 
power  is  local  in  its  nature  or  sphere  of  operation,  such  as  har- 
bor pilotage,  the  improvement  of  harbors,  the  establishment 


1  129  U.  S.  217.  4  123  U.  S.  623. 

2  192  U.  S.  189.  6  125  U.  S.  465. 
»  18  Wai!.  129. 


428 


THE  AMERICAN  CONSTITUTION 


[CH. 


Exemption 
of  original 
packages. 


Amendment 
of  June  18, 
1910. 


of  beacons  and  buoys  to  guide  vessels  in  and  out  of  port,  the 
construction  of  bridges  over  navigable  rivers,  the  erection  of 
wharves,  piers  and  docks,  and  the  like,  which  can  be  properly 
regulated  only  by  special  provisions  adapted  to  their  localities, 
the  state  can  act  until  Congress  interferes  and  supersedes  its 
authority;  but  where  the  subject  is  national  in  its  character, 
and  admits  and  requires  uniformity  of  regulation,  affecting 
alike  all  the  states,  such  as  transportation  between  the  states, 
including  the  importation  of  goods  from  one  state  to  another, 
Congress  can  alone  act  upon  it,  and  provide  the  needed  regu- 
lations. The  absence  of  any  law  of  Congress  on  the  subject  is 
equivalent  to  its  declaration  that  commerce  in  that  matter 
shall  be  free.  Thus  the  absence  of  regulations  as  to  interstate 
commerce  with  reference  to  any  particular  subject  is  taken  as 
a  declaration  that  the  importation  of  that  article  into  the  state 
shall  be  unrestricted.  It  is  only  after  the  importation  is  com- 
pleted, and  the  property  is  mingled  with  and  becomes  a  part  of 
the  general  property  of  the  state,  that  its  regulations  can  act 
upon  it,  except  so  far  as  may  be  necessary  to  insure  safety  in 
the  disposition  of  the  import  until  thus  mingled."  That  separ- 
ation'of  the  two  domains  was  approved,  as  "doctrine  now  firmly 
established,"  in  Leisy  v.  Hardin,1  in  which  it  was  held  that  a 
citizen  of  one  state  has  the  right  to  import  beer  into  another 
state,  and  the  right  to  sell  it  there  in  its  original  packages ;  that 
up  to  such  sale  the  state  has  no  power  to  interfere  by  seizure, 
or  any  other  action,  to  prevent  the  importation  and  sale  by  a 
foreign  or  non-resident  importer;  that  the  right  of  transporta- 
tion of  an  article  of  commerce  from  one  state  to  another  in- 
cludes the  right  of  the  consignee  to  sell  it  in  unbroken  packages 
at  the  place  where  the  transportation  terminates;  that  only 
after  the  importation  is  completed  and  the  property  imported  is 
mingled  with  and  becomes  apart  of  the  general  property  of  the 
state  by  a  sale  by  the  importer,  can  state  regulations  act  upon 
it.  That  case  was  approved  in  American  Steel  Co.  v.  Speed,2  in 
which  it  was  held  that  a  state  is  not  precluded  from  imposing 
a  merchants'  tax  upon  a  non-resident  manufacturing  corpora- 
tion which  stores  property  received  from  another  state  in  a 
warehouse  and  subsequently  sells  the  same.  In  the  Act  to  Reg- 
ulate Commerce  as  amended  up  to  June  18,  1910,  it  is  expressly 
1  135  U.  S.  100.  2  192  U.  S.  520. 


XIII.]  INTERSTATE  COMMERCE  429 

provided  "that  the  provisions  of  this  Act  shall  not  apply  to 
the  transportation  of  passengers  or  property,  or  to  the  receiv- 
ing, delivering,  storage,  or  handling  of  property  wholly  within 
one  state  and  not  shipped  to  or  from  a  foreign  country  from 
or  to  any  state  or  territory  as  aforesaid,  nor  shall  they  apply  to 
the  transmission  of  messages  by  telephone,  telegraph,  or  cable 
wholly  within  one  state  and  not  transmitted  to  or  from  a  for- 
eign country  from  or  to  any  state  or  territory  as  aforesaid." 

Such  is  the  essence  of  the  outcome  of  twenty-three  years  of  Three  new 
construction  of  the  Interstate  Commerce  Act  of  1887  at  the  te^i^tof 
hands  of  the  Commission  and  the  federal  courts,  all  of  which  June  18, 1910. 
must  be  considered  in  connection  with  the  amendments  made 
by  Congress  during  that  tentative  period,  so  numerous  that  a 
mere  catalogue  of  their  titles  occupies  two  printed  pages  octavo. 
In  the  light  of  that  experience  Congress  passed  an  Act,  ap- 
proved June  18,  1910,  entitled,  "  An  Act  to  create  a  Commerce 
Court,  and  to  amend  the  Act  entitled  'An  Act  to  regulate 
commerce,'  approved  February  fourth,  eighteen  hundred  and 
eighty-seven,  as  heretofore  amended,  and  for  other  purposes." 
Since  that  enactment  the  Interstate  Commerce  Commission  A  summary 
has  published  a  brief  compilation  entitled,  "The  Act  to  Regu-  of  statutes- 
late  Commerce  (as  amended),  and  acts  supplementary  thereto: 
Commerce  Court  Act;  Safety  Appliance  Acts;  Act  requiring 
monthly  report  of  accidents;  Arbitration  Act;  Hours  of  Serv- 
ice Act;  Revised  to  July  I,  1910."   In  that  form  we  have  a 
summary  of  the  entire  field  of  activity  to  which  the  work  of  the 
Commission  has  been  so  far  extended.   In  the  Act  of  June  18, 
1910,  there  are  three  new  subject-matters  worthy  of  special 
consideration.   By  section  7  of  that  Act  it  is  provided  "that 
the  provisions  of  this  Act  shall  apply  to  any  corporation  or 
any  person  or  persons  engaged  in  the  transportation  of  oil 
or  other  commodity,  except  water  and  except  natural  or  arti- 
ficial gas,  by  means  of  pipe-lines,  or  partly  by  pipe-lines  and  Pipe-lines,  tele- 
partly  by  railroad,  or  partly  by  pipe-lines  and  partly  by  water,  ^^  ^ 
and  to  telegraph,  telephone,  and  cable  companies  (whether  cable  corn- 
wire  or  wireless)  engaged  in  sending  messages  from  one  state,  panies  com" 

'    mon  earners. 

territory,  or  district  of  the  United  States,  to  any  other  state, 
territory,  or  district  of  the  United  States,  or  to  any  foreign 
country,  who  shall  be  considered  and  held  to  be  a  common 
carrier  within  the  meaning  and  purpose  of  this  Act."  By  sec- 


430 


Jurisdiction 
of  Commerce 
Court. 


THE  AMERICAN  CONSTITUTION 


[C*. 


Investigation 
of  railroad 
stocks  and 
bonds. 


Railroad 
capitalization. 


tion  I  of  the  same  Act  "a  court  of  the  United  States  is  hereby 
created  which  shall  be  known  as  the  Commerce  Court,  and 
shall  have  the  jurisdiction  now  possessed  by  Circuit  Courts  of 
the  United  States  and  the  judges  thereof  over  all  cases  of  the 
following  kinds:  First.  All  cases  for  the  enforcement,  other- 
wise than  by  adjudication  and  collection  of  a  forfeiture  or 
penalty  or  by  the  infliction  of  criminal  punishment,  of  any 
order  of  the  Interstate  Commerce  Commission  other  than  for 
the  payment  of  money.  Second.  Cases  brought  to  enjoin, 
set  aside,  or  suspend  in  whole  or  in  part  any  order  of  the 
Interstate  Commerce  Commission.  Third.  Such  cases  as  by 
Section  three  of  the  Act  entitled  '  An  Act  to  further  regulate 
commerce  with  foreign  nations  and  among  the  states, 'approved 
February  nineteenth,  nineteen  hundred  and  three,  are  au- 
thorized to  be  maintained  in  a  Circuit  Court  of  the  United 
States.  Fourth.  All  such  mandamus  proceedings  as  under  the 
provisions  of  section  twenty  or  section  twenty-three  of  the 
Act  entitled  'An  Act  to  regulate  commerce,'  approved  Febru- 
ary four,  eighteen  hundred  and  eighty-seven,  as  amended,  are 
authorized  to  be  maintained  in  a  Circuit  Court  of  the  United 
States.  Nothing  contained  in  this  Act  shall  be  construed  as 
enlarging  the  jurisdiction  now  possessed  by  the  Circuit  Courts 
of  the  United  States  or  the  judges  thereof,  that  is  hereby 
transferred  to  and  vested  in  the  Commerce  Court.  The  jurisdic- 
tion of  the  Commerce  Court  over  cases  of  the  foregoing  classes 
shall  be  exclusive;  but  this  Act  shall  not  affect  the  jurisdiction 
now  possessed  by  any  Circuit  or  District  Court  of  the  United 
States  over  cases  or  proceedings  of  a  kind  not  within  the  above 
enumerated  classes."  By  section  1 6  it  is  provided  "  that  the 
President  is  hereby  authorized  to  appoint  a  commission  to 
investigate  questions  pertaining  to  the  issuance  of  stock  and 
bonds  by  railroad  corporations,  subject  to  the  provisions  of 
the  Act  to  regulate  commerce,  and  the  power  of  Congress  to 
regulate  or  affect  the  same,  and  to  fix  the  compensation  of  the 
members  of  such  commission." 

As  that  Commission  has  been  appointed,  the  Federal  Gov- 
ernment has  taken  the  first  step  looking  to  its  control  of  rail- 
way capitalization,  a  subject  whose  vastness  will  appear  from 
the  following  statement:  "The  stocks  of  the  roads  of  this  coun- 
try, exclusive  of  switching  and  terminal  roads,  outstanding  in 


XIII.]  INTERSTATE  COMMERCE  431 

1890,  was  in  round  numbers,  $4,409,658,000,  and  in  1908, 
$7,373,2i2>ooo:  m  the  former  year  $28,194  per  mile  of  line, 
and  in  the  latter  year  $33,238  per  mile  of  line.  Their  funded 
debt  outstanding  in  1890  was  $4,574,576,000,  and  in  1908, 
$9,394,332,000:  per  mile  of  line  in  the  former  year  $29,249, 
and  in  the  latter  year  $42,349.  The  interest  that  accrued 
in  the  year  1890  was  $221,499,000,  and  in  the  year  1908, 
$368,295,000:  the  amount  of  interest  that  accrued  in  the  for- 
mer year  per  mile  of  line  was  $1,466,000  and  in  the  latter  year 
$1,660,000.  Thus  it  will  be  seen  that  there  has  been  a  steady 
and  rapid  increase  in  the  totals  of  stock  and  bond  capitaliza- 
tion, due,  of  course,  in  large  part,  to  additional  mileage,  and 
doubtless  to  some  extent  to  permanent  improvements,  addi- 
tional equipment,  etc. ;  and  that  the  annual  interest  accrued  per 
mile  of  line  in  1908  was  nearly  fifteen  per  cent  in  excess  of  that 
in  1 890,  and  more  than  ten  per  cent  in  excess  of  the  interest  ac- 
crued in  1905." 1  Those  who  contend  that  federal  control  should  Federal 
be  extended  over  the  broad  field  of  railroad  finance  say  that  Agencies 
companies  with  established  characters  and  credit  should  not  of  interstate 
be  permitted  in  times  of  prosperity  to  burden  their  properties  commerce- 
with  as  much  increased  liability  as  the  market  will  take,  with- 
out due  regard  to  the  purposes  to  which  the  fruits  of  the  addi- 
tional loans  shall  be  applied.  The  right  to  take  away  such  a 
standing  temptation  to  exploiters  is  based  upon  the  assump- 
tion that  the  absolute  and  unconditional  control  over  inter- 
state commerce  extends  necessarily  to  all  of  the  agencies  in- 
cident to  it.  When  it  is  actually  asserted,  it  will  no  doubt  be 
resisted  as  unconstitutional,  on  the  ground  that  it  violates  the 
rights  conferred  by  the  state  charters  under  which  most  of  the 
carriers  are  operated.  In  order  to  create  a  class  of  corporations 
that  will  be  unable  to  set  up  such  a  defense,  a  bill  was  intro- 
duced in  the  House  of  Representatives,  on  February  7,  1910, 
entitled  "A  Bill  to  provide  for  the  formation  of  corporations  to 
engage  in  interstate  and  international  trade,"  each  one  of  Corporations 
which  is  to  be  invested  with  a  national  franchise  to  produce  f°  engage  m 

interstate  and 

or  manufacture  within  any  state  any  of  the  articles  in  which  international 
it  proposes  to  trade,  such  franchises  having  been  heretofore  trade< 

1  These  figures  were  taken  from  state  Commerce  Commission,  de- 
the  address  of  the  Hon.  Judson  C.  livered  before  the  Economic  Club  of 
Clements,  a  member  of  the  Inter-  Boston,  March  30,  1910. 


432 


THE  AMERICAN  CONSTITUTION 


[Ca 


Federal 
control  of 
corporations. 


Excise  tax 
on  business. 


Federal  Anti- 
Trust  Act  of 
July  2,  1890. 


Prior  anti- 
trust state 
statutes. 


granted  only  by  the  states.  Whether  Congress  can  confer  them 
is  certainly  a  serious  question  involving,  in  a  very  difficult  and 
delicate  form,  the  relations  of  the  state  and  federal  govern- 
ments to  each  other.  The  purpose  here  is  simply  to  state  these 
pending  problems,  not  to  solve  them.  That  there  is  a  deter- 
mined purpose  to  extend  federal  control  over  corporations  to 
the  greatest  extent  possible,  regardless  of  the  sources  from 
which  their  charters  are  drawn,  was  manifested  by  the  Fed- 
eral Corporation  Tax  Law  of  1909,  which  provides  "that  every 
corporation  .  .  .  organized  under  the  laws  of  the  United  States, 
or  of  any  state  or  territory  of  the  United  States,  .  .  .  shall  be 
subject  to  pay  annually  a  special  tax  with  respect  to  the 
carrying  on,  or  doing  business  by  such  corporation."  The 
advocates  of  the  validity  of  the  tax  rest  its  constitutionality 
mainly  upon  the  proposition  that  it  is  an  excise  tax  on  busi- 
ness similar  to  that  sustained  in  the  case  of  Spreckles  v. 
McClain,1  while  those  who  oppose  it  contend  that  the  tax  is 
certainly  invalid  because  violative  of  the  fundamental  prin- 
ciple that  neither  state  nor  federal  government  may  tax  one 
of  the  instrumentalities  or  powers  of  the  other,  since  such  tax- 
ation, involving  as  it  does  the  possibility  of  the  destruction 
by  one  government  of  those  functions  reserved  exclusively  to 
the  other,  is  violative  of  the  federal  principle  itself.2 

The  same  general  causes  that  compelled  Congress  to  enact 
the  Interstate  Commerce  Act  of  1887,  compelled  it  to  enact  the 
Sherman  Anti-Trust  Act  of  July  2,  1890,  which  contains  these 
two  distinct  prohibitions :  — 

SECTION  i .  Every  contract,  combination,  in  the  form  of  trust  or  other- 
wise, or  conspiracy,  in  restraint  of  trade  or  commerce  among  the  several 
states,  or  with  foreign  nations,  is  hereby  declared  to  be  illegal. 

SECTION  2.  Every  person  who  shall  monopolize,  or  attempt  to  mono- 
polize, or  combine  or  conspire  with  any  other  person  or  persons,  to 
monopolize,  any  part  of  the  trade  or  commerce  among  the  several 
states,  or  with  foreign  nations,  will  be  guilty  of  a  misdemeanor. 

As  early  as  1870  some  of  the  states  attempted  to  prevent 
extortion  through  combinations  to  suppress  competition  by 
means  of  constitutional  prohibitions  directed  principally  against 


1  192  U.  S.  397. 

2  McCulloch     v.     Maryland,     4 
Wheat.  316.   A  judgment  has  just 


been  rendered  sustaining  the  con- 
stitutionality of  the  Act. 


XIII.]  INTERSTATE  COMMERCE  433 

discrimination  in  fares  and  freights,  while  in  a  few  states  the 
consolidation  of  parallel  and  competing  lines  of  railway,  was  for- 
bidden.1 The  movements  thus  begun  in  the  states  against  rail- 
road pools  and  discrimination  in  rates  for  transportation  have 
since  crystallized  into  systems  of  statute  law  directed  against 
restraints  of  trade  generally.  The  warfare  now  being  carried 
on  by  the  joint  forces  of  the  state  and  federal  governments 
against  monopolies  and  combinations  in  restraint  of  trade  is 
almost  as  old  as  civilization  itself.  As  early  as  A.  D.  483  we  Zeno's  edict 
find  the  Emperor  Zeno  issuing  to  the  Pretorian  Prefect  of  JS^°£*" 
Constantinople  an  edict  opening  with  this  declaration:  "We  483. 
command  that  no  one  may  presume  to  exercise  a  monopoly 
of  any  kind  of  cloth,  or  of  fish,  or  of  any  other  thing  serving 
for  food,  or  for  any  other  use,  whatever  its  nature  may  be, 
either  of  his  own  authority,  or  under  a  rescript  of  an  emperor 
already  procured,  or  that  may  hereafter  be  procured,  .  .  . 
nor  may  any  persons  combine  or  agree,  in  unlawful  meetings, 
that  different  kinds  of  merchandise  may  not  be  sold  at  a  less 
price  than  they  may  have  agreed  among  themselves."2 

In  England  we  find  from  the  Year-Books,  as  early  as  the  sec-  Early  English 
ond  of  Henry  V  (A.  D.  1415),  that  the  rule  that  contracts  which  [™ct?inre°n~ 
are  in  restraint  of  trade  are  void,  as  against  public  policy,  was  straint of  trade, 
then  settled  law.  The  kind  of  a  "trust"  described  in  Zeno's 
edict  became  the  subject  of  legislation  in  England  as  early  as 
the  fifth  and  sixth  of  Edward  VI,  chapter  14,  in  "An  Act 
against  Regraters,  Fore  tasters,  and  Ingrossers,"  the  crime  of 
regrating  in  Old-English  law  consisting  "of  buying  or  getting 
into  one's  hands  at  a  fair  or  market  any  provisions,  corn,  or 
other  dead  victual,  with  the  intention  of  selling  the  same  again 
in  the  same  fair  or  market,  or  in  some  other  within  four  miles 
thereof,  at  a  higher  price."3  That  statute  was  repealed  by 
12  George  III,  chapter  71,  because  "it  hath  been  found  by  ex- 
perience that  the  restraints  laid  by  several  statutes  upon  the 
dealing  in  corn,  meal,  flour,  cattle,  and  sundry  other  sorts  of 
victuals,  by  preventing  a  free  trade  in  said  commodities,  have 
a  tendency  to  discourage  the  growth,  and  to  enhance  the  price 

1  See  Spelling  on  Trusts  and  Mo-      and  first   appeared  in   8   Canadian 
nopolies,  140.  Law  Times,  299,  300.    See  also  23 

2  Code,  iv,  59.  The  translation  of      Am.  L.  Rev.  261. 

this  edict  is  by  A.  A.  Marsh,  Q.  C.,          *  Black,  Law  Dictionary. 


434 


THE  AMERICAN  CONSTITUTION 


[CH. 


Monopolies 
in  time  of 
Edward  VI. 


Monopolies  of 
Elizabeth. 


Anti- 
monopoly 
statute  of  21 
James  I,  c.  3, 


became  basic 
in  this  coun- 
try. 


of  the  same."  In  the  reign  of  Edward  VI  and  his  immediate 
successors  it  became  possible  to  create  monopolies  not  by  a 
combination  of  individuals  or  companies,  but  by  royal  patents 
whereby  the  sovereign  was  accustomed  to  grant  special  priv- 
ileges to  his  favorites,  which  constituted  a  practical  monopoly. 
As  denned  by  Lord  Coke,1  "A  monopoly  is  an  institution  or 
allowance  by  the  King  by  his  grant,  commission,  or  otherwise 
to  any  person  or  persons,  bodies  politic  or  corporate,  or  for  the 
sole  buying,  selling,  making,  working,  or  using  of  anything, 
whereby  any  person  or  persons,  bodies  politic  or  corporate,  are 
sought  to  be  restrained  of  any  freedom  or  liberty  that  they 
had  before,  or  hindered  in  their  lawful  trade."  It  was  mono- 
polies of  that  character  which  Elizabeth  granted  with  such  a 
lavish  hand.  "She  granted  her  servants  and  courtiers,"  says 
Hume,2  "patents  for  monopolies,  and  these  patents  they  sold 
to  others,  who  were  thereby  enabled  to  raise  commodities  to 
what  price  they  pleased,  and  who  put  invincible  restraints  upon 
all  commerce,  industry,  and  emulation  in  the  arts."  When 
the  legality  of  such  patents  was  questioned,  they  were  declared 
void  in  1602,  in  the  case  of  Darcy  v.  Allain.3 

The  position  thus  taken  by  the  Court  was  subsequently  con- 
firmed in  1623  by  the  statute  of  21  James  I,  chapter  3,  in  which 
it  was  declared  "  that  all  monopolies  and  all  commissions,  grants, 
licenses,  charters,  and  letters  patent  heretofore  made  or  granted 
or  hereafter  to  be  made  or  granted  to  any  person  or  persons, 
bodies  politic  or  corporate  whatsoever,  of  or  for  the  sole  buy- 
ing, selling,  making,  working,  or  using  of  anything  within  this 
realm  or  the  dominion  of  Wales,"  are  altogether  contrary 
to  the  laws  of  the  realm  and  utterly  void,  with  the  exception  of 
patents  for  new  inventions  for  a  limited  period,  and  for  print- 
ing (then  supposed  to  belong  to  the  prerogative  of  the  King), 
and  for  the  preparation  and  manufacture  of  certain  articles  and 
ordnance  intended  for  the  prosecution  of  war.  While  that  anti- 
monopoly  statute  of  James  I  became  basic4  in  the  jurisprudence 
of  the  United  States,  as  one  of  those  applicable  to  the  condition 
of  each  state  in  which  it  was  accepted  as  a  part  of  the  common 

1  3  Inst.  181.  Beach,  Monopolies  4  See  the  masterful  exposition  of 
and  Industrial  Trusts,  4-36.  Mr.  Justice  Field  in  his  dissenting 

2  History   of  England    (Harper's  opinion  in  the  Slaughter-House  Cases, 
ed.),  335-336.  16  Wall.  36. 

1  ii  Rep.  846. 


XIII.J  INTERSTATE  COMMERCE  435 

law,  the  early  English  doctrine  on  the  subject  of  monopolies 
was  there  seriously  modified  in  favor  of  the  same.  "At  a  later 
period,  as  modern  improvements  in  machinery  and  manufac- 
tures came  into  use,  and  under  the  influence  of  steam  naviga- 
tion and  railway  transportation,  many  of  the  statutes  against 
monopolies  were  repealed,  and  the  decisions  of  the  courts  be- 
came more  tolerant  of  combinations  of  capital  in  business  oper- 
ations, corporations  and  joint-stock  companies,  conducting  its  principles 
business  on  a  large  scale,  came  to  be  recognized  as  legitimate,  ~°^fie? in 
and  proper  business  methods.  Courts  of  equity  were  somewhat 
reluctant  to  conform  their  decisions  to  the  statutory  and 
common-law  changes,  but  the  rules  established  at  an  earlier  day 
were  gradually  modified  in  adaptation  to  modern  industrial 
conditions.  The  leading  case  of  the  Mogul  Steamship  Com- 
pany v.  McGregor,1  before  the  English  Court  of  Appeals,  is 
recognized  as  a  turning-point  in  the  decisions  of  the  courts. 
It  is  much  more  tolerant  of  'trusts'  than  the  decisions  of  an 
earlier  period."  2 

When  the  growth  of  great  combinations  of  capital,  arising  American 
out  of  steam  navigation  and  railway  transportation,  and  out  of  ™u,rts  fal1  , 

back  on  earlier 

modern  improvements  in  machinery  and  manufactures,  cast  English 
upon  American  courts  the  duty  of  dealing  anew,  and  upon  a  doctrine- 
larger  scale,  with  trusts  and  monopolies,  instead  of  following 
recent  English  precedents  in  favor  of  "trusts,"  they  deemed 
it  wiser  to  advance  by  falling  back  upon  the  earlier  and  more 
stringent  rules  of  the  common  law.  The  Federal  Anti-Trust 
Act  of  1890  and  the  anti- trust  statutes  of  most  of  the  states 
affix  severe  penalties  to  a  violation  of  their  terms,  and  in  some 
instances  an  attempt  to  control  the  price  of  any  commodity  or 
to  limit  its  production  is  made  a  criminal  conspiracy.  As  now 
construed,  the  Federal  Anti-Trust  Act  is  supposed  to  indulge 
in  a  sweeping  denunciation  of  "every  contract,  combination,  in 
the  form  of  trust  or  otherwise,  or  conspiracy,  in  restraint  of 
trade  or  commerce  among  the  several  states,  or  with  foreign 
nations."  For  seven  years  after  its  passage  the  idea,  evidently  How  Anti- 
entertained  by  its  authors,  seems  to  have  prevailed  that  "this  Tn!st  Act™ 

understood  by 

form  of  language  merely  described  such  contracts  and  combina-  its  authors. 

1  L.  R.  23  Q.  B.  Div.  598;  L.  R.          2  Beach,  Monopolies  and  Indus- 
App.  Cas.  25.  See  Taylor,  The  Sci-      trial  Trusts,  15-16. 
ence  of  Jurisprudence,  542-543. 


436  THE  AMERICAN  CONSTITUTION  [Cn. 

tions  as  were  made  for  the  express  purpose  of  preventing  com- 
petition and  thereby  controlling  prices  and  unduly  enhancing 
profits." l  A  marked  change  took  place,  however,  in  the  languid 
administration  of  the  Act  that  had  prevailed  down  to  that  time 
when  in  1897,  the  Supreme  Court,  adopting  a  literal  construc- 
tion of  the  broad  prohibition  of  the  Act,  declared,  in  United 
Literal  con-  States  v . Trans-Missouri  Freight  Association,2  that  "it  may  be 
struction  of  that  ^  poijcy  evidenced  by  the  passage  of  the  Act  itself  will, 
if  carried  out,  result  in  disaster  to  the  roads  and  in  a  failure  to 
secure  the  advantages  sought  from  such  legislation.  Whether 
that  will  be  the  result  or  not  we  do  not  know  and  cannot  pre- 
dict. These  considerations  are,  however,  not  for  us.  If  the  Act 
ought  to  read  as  contended  for  by  the  defendants,  Congress  is 
the  body  to  amend  it  and  not  this  Court  by  a  process  of  judicial 
legislation  wholly  unjustifiable." 

U.  S.  v.  Knight  During  the  Harrison  Administration,  in  the  early  part  of 
Co.,  1895.  which  the  Act  in  question  was  passed,  only  seven  proceedings 
were  commenced  under  it,  —  four  to  dissolve  combinations,  in 
which  only  minor  successes  were  won,  and  three  criminal  pro- 
ceedings, all  of  which  failed.  To  that  unpromising  beginning 
was  added  during  the  first  Cleveland  Administration  the  de- 
feat in  1895  of  the  Government  in  United  States  v.  E.  C.  Knight 
Co.,8  in  which  it  was  held  that  Congress  did  not  attempt  by  the 
Act  of  July  2,  1890,  to  assert  the  power  to  deal  with  monopoly 
as  such ;  or  to  limit  or  restrict  the  rights  of  corporations  or  citi- 
zens in  the  acquisition,  control,  or  disposition  of  property;  or 
to  regulate  or  prescribe  the  prices  at  which  property  or  the  pro- 
ducts thereof  should  be  sold ;  or  to  make  criminal  the  acts  of  per- 
sons in  the  acquisition  or  control  of  property  which  the  states 
sanctioned  or  permitted;  that  an  article  is  manufactured  for 
export  to  another  state  does  not  make  it  an  article  of  interstate 
commerce ;  the  intent  of  the  manufacturer  does  not  determine 
when  the  article  belongs  to  commerce ;  that  trade  or  commerce 
might  be  indirectly  affected  is  not  enough.  The  primary  pur- 
pose of  the  Act, "  to  protect  trade  and  commerce  against  unlaw- 
ful restraints  and  monopolies,"  was  declared  to  be  the  preven- 

1  See  Gilbert  H.  Montague's  arti-  ate,  March  27,  1890;  Senator  Hoar, 

cle    entitled  "The  Defects  of   the  Speech  in  Senate,  April  8,  1890. 
Sherman    Anti-Trust    Law,"    Yale          2  166  U.  S.  290,  340. 
Law  Journal,  Dec.,  1909,  p.  I,  citing          8  156  U.  S.  I. 
Senator  Edmunds,  Speech  in  Sen- 


XIII.]  INTERSTATE   COMMERCE  437 

tion  of  combinations,  contracts,  and  conspiracies  to  monopolize 
or  restrain  interstate  or  international  trade  and  commerce. 

In  referring  to  that  defeat,  in  his  annual  report  for  1895,  the 
Attorney-General  said :  "  Combinations  and  monopolies,  there-  Attorney-Gen- 
fore,  although  they  may  unlawfully  control  production  and 
prices  of  articles  in  general  use,  cannot  be  reached  under  this 
law  merely  because  they  are  combinations  and  monopolies, 
nor  because  they  may  engage  in  interstate  commerce  as  one  of 
the  incidents  of  their  business";  and,  in  his  report  of  the  next 
year,  he  added  that  "the  restricted  scope  of  the  provisions  of 
this  law  as  they  had  been  construed  by  the  courts,  especially 
in  the  case  of  United  States  v.  E.  C.  Knight  Co.  (156  U.  S.  i), 
makes  amendment  necessary  if  any  effective  action  is  expected 
from  this  department."  l  Until  that  time  the  Act  had  been 
employed  effectively  only  in  the  dissolution  of  oppressive  trade 
agreements,  and  in  the  punishment  of  lawless  combinations  of 
laborers  and  railroad  employees,  charged  with  a  combination 
and  conspiracy  to  bring  about  unlawful  and  forcible  inter- 
ference with  interstate  commerce  and  the  transportation  of 
the  mails.  In  denying  the  petition  for  habeas  corpus,  Re 
Debs,2  the  Court  said:  "We  enter  into  no  examination  of  the  foDebs,  1895. 
Act  of  July  2,  1890  (26  Stat.  at  Large,  209),  upon  which  the 
Circuit  Court  relied  mainly  to  sustain  its  jurisdiction.  It  must 
not  be  understood  from  this  that  we  dissent  from  the  conclu- 
sions of  that  court  in  reference  to  the  scope  of  the  Act,  but  sim- 
ply that  we  prefer  to  rest  our  judgment  on  the  broader  ground 
which  has  been  discussed  in  this  opinion,3  believing  it  of  import- 
ance that  the  principles  underlying  it  should  be  fully  stated 
and  affirmed." 

Such  were  the  conditions  antecedent  to  the  announcement,  United  states 
on  March  22,  1897,  of  the  judgment  in  United  States  v.  Trans-  J^Efcfe* 
Missouri  Freight  Association,  in  which  it  was  bluntly  declared  Association, 
that  the  judicial  power  would  execute  "  the  policy  evidenced  l897' 
by  the  passage  of  the  Act  itself,"  regardless  of  any  possible 
disaster  that  might  result  from  the  enforcement  of  that  policy ; 

1  Annual  Report  of  the  Attorney-      ers  and  duties  to  be  exercised  and 
General  of  the  United  States,  1896.        discharged  for  the  general  welfare, 

2  158  U.  S.  564  (1895).  has  a  right  to  apply  to  its  own  courts 
1  That  broader  ground  was  that      for  any  proper  assistance  in  the  ex- 

"  every  government,    intrusted    by      ercise  of  the  one  and  the  discharge 
the  very  terms  of  its  being  with  pow-      of  the  other." 


438 


THE  AMERICAN  CONSTITUTION 


[CH. 


Single  owner- 
ship in  "hold- 
ing corpora- 
tions." 


Surrender  of 
McKinley 
Administra- 
tion. 


that  if  amendments  were  necessary,  Congress  alone  was  com- 
petent to  make  them.  The  outcome  of  the  alarm  that  fol- 
lowed that  change  in  the  policy  of  the  Supreme  Court  was  a 
rush  to  consolidation  in  every  branch  of  industry.  As  the  Act, 
strictly  construed,  put  the  stamp  of  nullity  upon  every  contract, 
combination,  or  agreement,  in  the  form  of  trust  or  otherwise, 
in  restraint  of  trade  or  commerce  among  the  several  states,  or  with 
foreign  nations,  the  corporations  resolved  to  abandon  contracts, 
associations,  and  loose  combinations  restraining  trade  in  the 
slightest  degree,  for  consolidation  under  single  ownership  in 
" holding  corporations."  Thus  came  into  being  gigantic  "hold- 
ing corporations,"  designed  to  concentrate  under  a  single  con- 
trol power  previously  diffused  among  groups  of  concerns.  As 
a  specialist  has  recently  stated  it:  "Before  1897  there  existed 
scarcely  sixty  concerns  that  were  dominant  in  their  respective 
trades.  During  the  next  three  years  one  hundred  and  eighty- 
three  such  corporations  were  organized  —  seventy-nine  in  the 
year  1899  alone — with  a  total  capitalization  of  over  four 
billions  of  dollars.  These  enormous  combinations  comprised 
one  seventh  of  the  manufacturing  industry  of  the  United 
States,  one  twentieth  of  the  total  wealth  of  the  nation,  nearly 
twice  the  amount  of  money  in  circulation  in  the  country,  and 
more  than  four  times  the  capitalization  of  all  the  manufactur- 
ing consolidations  that  were  organized  between  1860  and  1893. 
In  rapid  succession  various  concerns  in  the  steel  business  com- 
bined, until  in  1901  the  United  States  Steel  Corporation  was 
organized  with  a  capitalization  of  one  billion  four  hundred 
million  dollars,  for  the  purpose  of  acquiring  the  stock  of  ten  of 
the  largest  corporations  in  the  world.  The  consolidation  among 
the  railroads  was  still  more  remarkable.  Ninety  per  cent  of  the 
total  railroad  mileage  fell  into  the  control  of  fifty-seven  rail- 
road systems,  which  together  represented  ninety-two  per  cent 
of  the  total  capital  stock  and  ninety-eight  per  cent  of  the  total 
capitalization,  including  stock  and  bonds,  of  all  the  railroads  in 
the  country." l  The  McKinley  Administration,  which  did  prac- 
tically nothing  under  the  Act,  surrendered  to  the  new  device 
known  as  the  "holding  corporation  " ;  and  in  his  report  for  1899, 
the  Attorney-General  said : "  In  all  instances  the  Department  has 


1  G.  H.  Montague's  article,  3,  4, 
citing  G.  H.  Montague:  Trusts  of 


To-day,  23;  Moody:  Manual  of  R.  R. 
and  Corporation  Securities,  1900-09. 


XIII.]  INTERSTATE  COMMERCE  '  439 

been  governed  only  by  a  sincere  desire  to  enforce  the  law  as  it 
exists  and  to  avoid  subjecting  the  Government  to  useless  ex- 
pense and  all  officers  of  the  Government  to  humiliating  defeat 
by  bringing  actions  where  there  was  a  clear  want  of  jurisdiction 
under  the  well-defined  limits  of  federal  jurisdiction  so  clearly 
laid  down  by  the  Supreme  Court  in  cases  already  decided." 

President  Roosevelt's  Administration  began  September  14,  Roosevelt 
1901,  and  in  1903  occurred  a  panic  which  focused  the  eyes  of  andKnox- 
the  public  upon  the  vast  industrial  combinations,  the  vicissi- 
tudes of  whose  securities  in  the  market,  and  the  effect  of  their 
operations  upon  their  competitors,  their  consumers,  and  the 
public  generally,  discredited  the  idea  that  consolidation  in  the 
form  of  merger  was  a  universal  solvent.  In  February,  1903,  five 
hundred  thousand  dollars  were  appropriated  to  be  expended 
in  prosecutions  under  the  Sherman  Anti-Trust  Act  and  the 
Interstate  Commerce  Act l  by  Attorney-General  Knox,  who  was 
at  once  willing  and  able  to  win.  In  that  year  proceedings  were 
begun  under  the  Act  in  question  against  the  Northern  Secur-  Northern 
ities  Company,  a  " holding  corporation";  and  in  March,  1904, 
a  judgment  was  rendered  by  the  Supreme  Court  in  which  it  was 
held  that  Congress  did  not  exceed  its  power  under  the  com- 
merce clause  of  the  Constitution  in  enacting  the  statute  in 
question,  declaring  illegal  every  combination  or  conspiracy 
in  restraint  of  interstate  commerce,  and  forbidding  attempts 
to  monopolize  such  commerce  or  any  part  of  it,  although  such 
statute  is  construed  to  embrace  a  combination  of  stockholders 
of  two  competing  interstate  railway  companies  to  form  a  stock- 
holding corporation  which  should  acquire,  in  exchange  for  its 
own  capital  stock,  a  controlling  interest  in  the  capital  stock  of 
each  of  such  railway  companies.  In  a  word,  the  Court  held  that 
the  Northern  Securities  Company  was  in  violation  of  the  Anti- 
Trust  Act,  and  declared  illegal  all  combinations  in  restraint 
of  trade  effected  through  the  device  of  "holding  corporations." 
While  concurring  in  the  result,  Mr.  Justice  Brewer  —  who  Justice  Brew- 
was  with  the  majority  of  the  Court  in  United  States  v.  Trans- 
Missouri  Freight  Association  and  like  cases  that  followed  it  — 
deemed  it  necessary  to  say  that,  still  adhering  to  "the  convic- 
tion that  those  cases  were  rightly  decided,  I  think  that  in  some 
respects  the  reasons  given  for  the  judgments  cannot  be  sus- 
1  Act  of  February  25,  1903. 


440  THE  AMERICAN  CONSTITUTION  [Cn. 

tained.  Instead  of  holding  that  the  Anti-Trust  Act  included  all 
contracts,  reasonable  or  unreasonable,  in  restraint  of  inter- 
state trade,  the  ruling  should  have  been  that  the  contracts 
there  presented  were  unreasonable  restraints  of  interstate 
trade,  and  as  such  within  the  scope  of  the  Act.  That  Act,  as 
appears  from  its  title,  was  leveled  only  at  '  unlawful  restraints 
and  monopolies.'  Congress  did  not  intend  to  reach  and  de- 
stroy those  minor  contracts  in  partial  restraint  of  trade  which 
the  long  course  of  decisions  at  common  law  had  affirmed  were 
reasonable  and  ought  to  be  upheld.  The  purpose  rather  was 
to  place  a  statutory  prohibition,  with  prescribed  penalties  and 
remedies,  upon  those  contracts  which  were  in  direct  restraint 
of  trade,  unreasonable,  and  against  public  policy.  .  .  .Further, 
the  general  language  of  the  Act  is  also  limited  by  the  power 
which  each  individual  has  to  manage  his  own  property  and  de- 
termine the  place  and  manner  of  its  investment.  Freedom  of 
action  in  these  respects  is  among  the  inalienable  rights  of  every 
citizen."  That  final  statement  is  the  key  to  the  analysis  of  the 
two  vigorous  dissenting  opinions  prepared  by  Mr.  Justice  White 
and  Mr.  Justice  Holmes.  The  former  rests  upon  the  conten- 
tion that  Congress  has  no  constitutional  authority  to  curtail 
"the  power  which  each  individual  has  to  manage  his  own  pro- 
perty and  determine  the  place  and  manner  of  its  investment," 
to  the  extent  indicated  in  the  judgment  of  the  Court.  "True, 
justice  the  instrumentalities  of  interstate  commerce,"  says  Mr.  Just- 

White's  jce  White,  "are  subject  to  the  power  to  regulate  commerce, 

and  therefore  such  instrumentalities  when  employed  in  inter- 
state commerce  may  be  regulated  by  Congress  as  to  their  use 
in  such  commerce.  But  this  is  entirely  distinct  from  the  power 
to  regulate  the  acquisition  and  ownership  of  such  instrument- 
alities, and  the  many  forms  of  contracts  from  which  such 
ownership  may  arise.  .  .  .  All  the  rights  of  ownership  in  rail- 
roads belonging  to  corporations  organized  under  the  state  law, 
the  power  to  acquire  the  same,  to  mortgage,  to  foreclose  mort- 
gages, to  lease  and  the  contract  relations  concerning  them, 
have,  from  the  foundation,  had  their  sanction  in  the  legislation 
justice  of  the  several  states."  The  latter  rests  upon  the  contention  that 

Assent5'8  conceding  the  power  of  Congress,  which  Mr.  Justice  White 

denies,  the  Anti-Trust  Act,  "when  properly  interpreted,  does 
not  embrace  the  acquisition  and  ownership  of  such  stock. "   "In 


XIII.]  INTERSTATE  COMMERCE  441 

view  of  my  interpretation  of  the  statute,"  says  Mr.  Justice 
Holmes,  "  I  do  not  go  further  into  the  question  of  the  power  of 
Congress.  That  has  been  dealt  with  by  my  brother  White,  and 
I  concur,  in  the  main,  with  his  views." 

So  disquieting  was  the  effect  of  the  sweeping  victory  of  the  Combinations 
Government  in  the  Northern  Securities  Company  Case,  which  ^  do  .g?°  ^ 

r  distinguished 

put  outside  of  the  law  a  vast  number  of  industrial  concerns  from  those 
of  the  first  importance,  that  the  Administration  hastened  to  that  do  eviL 
assure  the  business  community  that  it  would  be  used  with 
justice  and  moderation;  that  only  "bad"  trusts  would  be  sin- 
gled out  for  prosecution.  In  his  annual  message  in  1905  Presi- 
dent Roosevelt  said:  "It  is  generally  useless  to  try  to  prohibit 
all  restraint  on  competition,  whether  this  restraint  be  reason- 
able or  unreasonable ;  and  where  it  is  not  useless  it  is  generally 
hurtful" ;  and  in  his  annual  message  in  1906  he  said,  while  dis- 
cussing the  working  of  the  Anti-Trust  Act:  "The  actual  work- 
ing of  our  laws  has  shown  that  the  effort  to  prohibit  all  com- 
binations, good,  or  bad,  is  noxious  where  it  is  not  ineffective. 
Combination  of  capital,  like  combination  of  labor,  is  a  neces- 
sary element  in  our  present  industrial  system.  It  is  not  possible 
completely  to  prevent  it ;  and  if  it  were  possible,  such  complete 
prevention  would  do  damage  to  the  body  politic.  ...  It  is 
unfortunate  that  our  present  laws  should  forbid  all  combina- 
tions instead  of  sharply  discriminating  between  those  com- 
binations which  do  good,  and  those  combinations  that  do 
evil."  In  September  of  the  year  last  named,  Judge  Taft,  in  a 
speech  at  Bath,  Maine,  in  describing  the  Anti-Trust  Act,  said : 
"Construed  literally,  this  statute  could  be  used  to  punish  Danger  of  lit- 
combinations  of  the  most  useful  character,  like  partnerships  erdconstruc- 
and  other  business  arrangements  conceded  by  all  to  be  legiti- 
mate and  proper;  and  the  difficulty  in  its  construction  has 
been  to  draw  a  line  effective  to  suppress  the  real  evil  aimed 
at  by  the  legislature  and  to  furnish  a  proper  and  clear  rule  for 
the  guidance  of  business  men  while  not  interfering  with  legiti- 
mate combinations  which  Congress  has  no  purpose  to  prevent." 
In  opening  his  campaign  at  Columbus,  Ohio,  August  19,  1908, 
Judge  Taft  said:  "I  am  inclined  to  the  opinion  that  the  time  Amendment 
is  near  at  hand  for  an  amendment  of  the  Anti-Trust  Law,  defin-  °f  Antl-Trust 

.  ......  Act  proposed. 

ing  in  great  detail  the  evils  against  which  it  is  aimed  and  mak- 
ing clearer  the  distinction  between  lawful  agreements  reason- 


442 


THE  AMERICAN  CONSTITUTION 


[Cn. 


can  Tobacco 
Co.,  1908. 


ably  restraining  trade  and  those  which  are  pernicious  in  their 
effect,  and  particularly  denouncing  the  various  devices  for 
monopolizing  trade  which  prosecutions  and  investigations  have 
shown  to  be  used  in  actual  practice.  The  decisions  of  the  courts 
and  the  experience  of  executive  and  prosecuting  officers  make 
the  framing  of  such  a  statute  possible." 

In  the  same  year  the  Circuit  Court  of  Appeals  declared  the 
Case  of  Ameri-   American  Tobacco  Company  and  its  allied  concerns  a  combina- 
tion in  violation  of  the  Anti-Trust  Act,  Judge  Lacombe  saying 
in  his  opinion,1  after  quoting  the  terms  of  section  I :  — 

That  declaration,  ambiguous  when  enacted,  is,  as  the  writer  believes, 
no  longer  open  to  construction  in  inferior  federal  courts.  Disregarding 
the  various  dicta  and  following  the  several  propositions  which  have  been 
approved  by  successive  majorities  of  the  Supreme  Court,  this  language 
is  to  be  construed  as  prohibiting  any  contract  or  combination  whose 
direct  effect  is  to  prevent  the  free  play  of  competition,  and  thus  tend 
to  deprive  the  country  of  the  services  of  any  number  of  independent 
dealers,  however  small.  As  thus  construed,  the  statute  is  revolutionary. 
By  this  it  is  not  intended  to  imply  that  the  construction  is  incorrect. 
When  we  remember  the  circumstances  under  which  the  Act  was  passed, 
the  popular  prejudice  against  large  aggregations  of  capital,  and  the  loud 
outcry  against  combinations  which  might  in  one  way  or  another  inter- 
fere to  suppress  or  check  the  full,  free,  and  wholly  unrestrained  com- 
petition which  was  assumed,  rightly  or  wrongly,  to  be  the  very  "life  of 
trade,"  it  would  not  be  surprising  to  find  that  Congress  had  responded 
to  what  seemed  to  be  the  wish  of  a  large  part,  if  not  all,  of  the  commun- 
ity, and  that  it  intended  to  secure  such  competition  against  the  opera- 
Act  termed  tion  of  the  natural  laws.  The  Act  may  be  termed  revolutionary, 
revolutionary  because  before  its  passage  the  courts  had  recognized  a  "restraint  of 
trade  "  which  was  held  to  be  unfair,  but  permissible,  although  it  operated 
in  some  measure  to  restrict  competition.  By  insensible  degrees,  Under 
the  operation  of  many  causes,  business,  manufacturing,  and  trading 
alike  has  more  and  more  developed  a  tendency  toward  larger  and  larger 
aggregations  of  capital  and  more  extensive  combination  of  individual 
enterprise.  It  is  contended  that  under  existing  conditions  in  that  way 
only  can  production  be  increased  and  cheapened,  new  markets  opened 
and  developed,  stability  in  reasonable  prices  secured,  and  industrial 
progress  assured.  But  every  aggregation  of  individuals  or  corporations 
formerly  independent,  immediately  upon  its  formation  terminates  an 
existing  competition ;  whether  or  not  some  other  competition  may  sub- 
sequently arise.  The  Act,  as  above  construed,  prohibits  every  contract 
or  combination  in  restraint  of  competition.  Size  is  not  made  the  test. 
Two  individuals,  who  have  been  driving  rival  express  wagons  between 
villages  in  contiguous  states,  who  enter  into  a  combination  to  join 
forces  and  operate  a  single  line,  restrain  an  existing  competition,  and 

1  United  States  v.  American  Tobacco  Co.,  164  Fed.  700,  701. 


XIII.]  INTERSTATE  COMMERCE  443 

it  would  seem  to  make  little  difference  whether  they  make  such  a  com- 
bination more  effective  by  partnership  or  not. 

In  juxtaposition  with  that  view  will  be  placed  a  contrary  Review  by 
view1  recently  expressed  by  an  eminent  jurist  and  practical  Morawetz- 
man  of  large  affairs,  who,  after  quoting  sections  I  and  2  of  the 
Act  in  question,  declares  that  — 

On  their  face  these  prohibitions  appear  to  enforce  only  established 
doctrines  of  the  common  law.  Certainly  they  do  not  seem  revolutionary 
or  in  conflict  with  sound  political  and  economic  policies.  However,  an 
idea  has  become  prevalent  that  the  Anti-Trust  Act  has  introduced  into 
the  law  some  novel  doctrine  inconsistent  with  the  successful  conduct  of 
trade.  It  has  been  asserted  that,  if  enforced  consistently,  the  Act  would 
revolutionize  modern  business  methods  and,  by  making  it  impossible  to 
carry  on  business  effectively,  would  check  our  industrial  progress  and  re- 
strain the  trade  and  commerce  which  it  was  designed  to  protect.  In  my  A  popular 
opinion,  this  is  a  mistake.  It  is  true  that  there  are  dicta  in  some  of  the  error  assailed, 
opinions  of  the  Judges  which,  taken  alone,  may  furnish  some  basis  for 
these  views  and  these  fears;  but  the  mere  dicta  of  Judges  are  not  binding 
as  precedents.  Only  actual  decisions  control  in  future  cases,  and  it  will 
be  found  that,  with  one  exception,  the  actual  decisions  of  the  Supreme 
Court  are  consistent  with  a  harmonious  construction  of  the  Act  which 
would  effect  its  purpose  without  interfering  with  any  business  methods 
that  ever  have  been  regarded  as  lawful  and  proper. 

The  cases  arising  under  the  Anti-Trust  Act  may  be  divided  into  four   Cases  divided 
classes,  viz.:  into  four 

i.  Cases  involving  contracts,  combinations  or  conspiracies  to  restrain  the 
trade  or  commerce  of  other  persons,  or  of  the  public  generally. 

Contracts,  combinations  or  conspiracies  by  means  of  physical  force, 
or  by  means  of  threats  of  damage,  or  boycotting,  to  prevent  other 
persons,  or  the  public  generally,  from  carrying  on  trade  or  commerce, 
are  illegal  at  common  law,  and  it  is  eminently  proper  that  contracts, 
combinations,  or  conspiracies  of  that  character,  when  in  restraint  of 
interstate  or  international  trade  or  commerce,  should  be  prohibited  by 
an  Act  of  Congress  furnishing  effective  remedies  for  its  enforcement. 

The  Supreme  Court  has  decided  that  the  first  section  of  the  Anti- 
Trust  Act  applies  to  contracts,  combinations,  or  conspiracies  of  that 
character.  Thus,  in  the  Debs  case  (158  U.  S.  564)  the  Supreme  Court  Debs  case, 
decided  that  a  combination  or  conspiracy  of  certain  railway  employees 
to  stop  the  operation  of  railways  that  were  highways  of  interstate  com- 
merce was  a  restraint  of  interstate  trade  or  commerce  within  the  mean- 
ing of  the  Act.  The  stoppage  or  obstruction  of  the  highways  of  inter- 
state commerce  necessarily  operated  as  a  direct  restraint  of  the  inter- 
state commerce  of  the  public  generally. 

1  A  paper  entitled  "  The  Supreme  the  New  York  Times,  October  9, 
Court  and  the  Anti-Trust  Act,"  in  1910,  by  Mr.  Victor  Morawetz. 


444 


Hatters'  case. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


The  Traffic 


An  important 
distinction. 


In  Loewe  v.  Lawlor  (208  U.  S.  274),  sometimes  called  the  Danbury 
Hatters'  case,  the  Supreme  Court  decided  that  a  combination  or  conspir- 
acy by  means  of  a  boycott  to  stop  interstate  trade  or  commerce  between 
certain  manufacturers  and  their  customers  was  in  restraint  of  interstate 
trade  or  commerce.  In  this  case  there  was  not,  as  there  was  in  the  Debs 
case,  a  physical  obstruction  of  trade  or  commerce,  but  the  purpose  and 
the  effect  of  the  combination  or  conspiracy  were  to  restrain  other  per- 
sons from  engaging  in  interstate  commerce  by  threatening  damage  to 
their  business  until  certain  demands  of  those  entering  into  the  combina- 
tion or  conspiracy  were  complied  with. 

Interstate  trade  or  commerce  also  may  be  restrained  by  a  contract  or 
combination  operating  as  a  peaceable  trade  boycott,  without  the  use  of 
force  or  threats  of  damage.  In  Montague  v.  Lowry  (193  U.  S.  38),  the 
Supreme  Court  decided  that  the  Anti-Trust  Act  rendered  unlawful  the 
formation  of  an  association  of  the  manufacturers  of  tiles  throughout 
the  United  States  and  certain  dealers  in  tiles  in  or  near  San  Francisco, 
under  an  agreement  that  the  manufacturers  would  not  sell  their  pro- 
ducts on  any  terms  to  persons  who  were  not  members  of  the  association 
and  that  the  dealers  who  were  members  would  not  sell  to  non-members 
except  at  specified  "prices  that  were  more  than  fifty  per  cent  higher  than 
the  prices  payable  by  members.  .  .  . 

2.  Cases  involving  contracts  or  combinations  of  public  carriers  to  increase 
the  rates  or  tolls  payable  by  the  public  in  respect  of  interstate  commerce. 

The  railways  are  the  principal  highways  of  interstate  trade  and  com- 
merce. If,  as  it  was  decided  in  the  Debs  case,  a  combination  or  conspir- 
acy by  physical  force  to  stop  the  operation  of  interstate  railways  would 
be  in  violation  of  the  first  section  of  the  Act  because  in  restraint  of  the 
interstate  commerce  of  the  public,  it  would  seem  to  follow,  for  similar 
reasons,  that  a  combination  or  conspiracy,  without  resort  to  physical 
obstruction,  to  render  the  transaction  of  interstate  commerce  upon  the 
railways  more  difficult  or  more  costly  would  be  in  restraint  of  interstate 
commerce  within  the  meaning  of  the  Act.  In  the  Trans-Missouri  Freight 
Association  case  (166  U.  S.  290),  and  in  the  Joint  Traffic  Association 
cases  (171  U.  S.  505, 565, 569),  the  Supreme  Court  held  that  contracts  or 
combinations  among  railway  companies  to  maintain  rates  upon  com- 
petitive interstate  traffic  operated  as  a  restraint  of  interstate  trade  or 
commerce.  It  was  contended  that  a  combination  to  maintain  rates  upon 
competitive  business  could  not  fairly  be  considered  in  restraint  of  com- 
merce unless  the  rates  themselves  were  unreasonable ;  but  the  Court  held 
that,  in  such  a  case,  it  would  not  inquire  into  the  reasonableness  of  the 
rates  and  that  the  combination  must  be  deemed  in  restraint  of  com- 
merce because  its  natural  and  direct  effect  was  to  maintain  at  a  higher 
level  than  otherwise  would  prevail  the  rates  payable  by  the  public  as 
a  condition  of  carrying  on  interstate  trade  or  commerce. 

These  Traffic  cases  are  not  authority  for  the  doctrine  that  a  contract 
or  combination  among  merchants  or  manufacturers  would  constitute 
a  restraint  of  interstate  commerce,  prohibited  by  the  first  section  of  the 


XIII.]  INTERSTATE  COMMERCE  445 

Anti-Trust  Act,  on  the  sole  ground  that  the  effect  of  the  contract  or 
combination  was  to  restrict  competition  among  the  parties.  Railway 
companies  furnish  the  transportation  necessary  to  enable  the  public  to 
engage  in  interstate  trade  or  commerce.  But  they  are  not  themselves  en- 
gaged in  interstate  trade  or  commerce.  In  the  Traffic  cases  the  stoppage 
of  competition  was  in  restraint  of  interstate  commerce  and  unlawful,  not 
because  it  restrained  commerce  of  the  railway  companies  which  made 
the  contracts  or  entered  into  the  combinations,  but  because  its  effect 
was  to  restrain  the  interstate  commerce  of  the  public  by  imposing  addi- 
tional burdens  upon  this  trade  or  commerce.  As  stated  by  the  Supreme 
Court,  the  natural  and  direct  effect  of  such  contracts  or  combinations 
was  to  maintain  rates  at  a  higher  level  than  otherwise  would  prevail. 

In  the  Northern  Securities  case  the  Supreme  Court  held  that  a  com-  Holding 
bination  to  acquire  and  to  vest  in  a  holding  company  a  majority  of  the  companies, 
stocks  of  two  railway  companies  operating  parallel  and  competing  lines 
that  were  highways  of  interstate  commerce  was  in  restraint  of  interstate 
commerce  within  the  meaning  of  the  first  section  of  the  Anti-Trust  Act. 
If,  as  decided  in  the  Traffic  cases,  a  combination  among  railway  com- 
panies by  agreement  to  maintain  rates  was  in  restraint  of  interstate 
commerce  within  the  meaning  of  the  Act,  because  the  natural  and  direct 
effect  of  the  combination  was  to  maintain  rates  at  a  higher  level  than 
otherwise  would  prevail,  it  seems  to  follow,  as  a  necessary  sequence,  that 
a  combination  to  bring  about  the  same  result  by  uniting  the  ownership  of 
two  parallel  and  competing  interstate  lines  would  otherwise  be  unlaw- 
ful, whether  the  combination  be  in  the  form  of  a  corporation,  an  unin- 
corporated joint-stock  company,  an  ordinary  partnership,  or  a  trust. 

Prior  to  the  decision  of  the  Traffic  cases  there  had  been  many  contracts   Pooling 
and  combinations  to  maintain  rates  in  respect  of  competitive  traffic,  or   contracts, 
to  divide  or  to  pool  competitive  traffic;  but  such  agreements  never 
were  regarded  as  practically  enforceable,  and  there  is  little  doubt  that 
even  prior  to  the  passage  of  the  Anti-Trust  Act  they  were  unlawful. 
Whatever  view  may  be  taken  of  the  correctness  of  the  decision  of 
the  Supreme  Court  in  the  Traffic  cases,  their  importance  has  been 
greatly  diminished  by  the  enforcement  of  the  laws  prohibiting  rail- 
way companies  from  granting  secret  rebates  or  from  departing  from 
their  published  rate  schedules. 

It  has  been  contended  that  uniformity  of  rates  upon  competing  lines  Necessity  for 
as  to  traffic  between  the  same  points  is  a  business  necessity,  and  that  uniformity  of 
under  the  decisions  in  the  Traffic  cases  the  railway  companies  cannot  rates> 
lawfully  consult  among  themselves  for  the  purpose  of  establishing  this 
necessary  uniformity  of  rates.   In  the  opinion  of  the  writer  the  Supreme 
Court  has  not  decided  and  is  not  likely  to  decide  that  the  Anti-Trust  Act 
prohibits  consultations  among  railway  officials  for  the  purpose  of  adjust- 
ing their  rate  schedules  and  establishing  uniform  rates  as  to  competitive 
business,  provided  that  the  companies  retain  their  freedom  to  modify 
these  rates  and  do  not  agree  to  maintain  them.   In  the  Traffic  cases  the 
restraint  of  interstate  commerce  did  not  arise  from  the  fact  that  the  rail- 
way companies  had  consulted  each  other  for  the  purpose  of  establish- 


446 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Contracts 

diminishing 

competition. 


Addyston  Pipe 
Co.  case. 


ing  uniform  rates,  but  it  arose  from  the  fact  that  they  had  entered  into 
agreements  or  combinations  to  maintain  rates  by  preventing  the  several 
companies  from  changing  the  rates  as  so  established. 

3.  Cases  involving  contracts  or  combinations  that,  without  restraining  the 
trade  or  commerce  of  others  and  without  monopolizing  or  attempting 
to  monopolize  trade  or  commerce,  simply  diminish  competition  among 
those  contracting  or  combining. 

The  Supreme  Court  never  has  decided  that  contracts  or  combinations 
of  this  character  are  prohibited  by  the  Anti-Trust  Act.  Although  dicta 
may  be  found  in  the  opinions  of  the  Court  which,  taken  without  regard 
to  the  context,  might  seem  to  indicate  that  the  Court  considered  that  all 
contracts  and  combinations  restricting  competition  in  any  degree  were 
prohibited  by  the  Anti-Trust  Act,  no  such  conclusion  can  fairly  be  de- 
duced from  these  opinions  when  considered  in  their  entirety.  In  some 
of  the  cases  the  Court  held  that  the  contracts  or  combinations  in  ques- 
tion were  unlawful  on  the  ground  that  they  were  "in  restraint  of  trade 
or  commerce,"  and  the  Court  did  not  specifically  assign  as  the  ground  of 
its  decision  that  the  effect  or  purpose  of  the  contracts  or  combinations 
was  to  monopolize  a  branch  of  interstate  trade  or  commerce  in  violation 
of  the  second  section  of  the  Act;  but  it  is  apparent  that  the  Court  did  not 
proceed  on  the  ground  that  every  restriction  of  competition  would  con- 
stitute a  prohibited  restraint  of  commerce,  without  regard  to  the  degree 
to  which  competition  was  eliminated.  If  the  Court  had  been  of  opinion 
that  every  restriction  of  competition  was  in  violation  of  the  Act,  it  is  not 
likely  that  the  Court  would  have  labored,  as  it  did,  to  show  that  the 
restriction  of  competition  was  carried  to  such  an  extent  as  to  monopolize 
trade  or  commerce.  Thus,  in  the  case  of  the  Addyston  Pipe  Company 
(175  U.  S.  21 1)  it  appeared  that  nearly  all  the  manufacturers  of  iron  pipe 
within  thirty-six  states  and  territories  had  combined  under  an  agree- 
ment to  apportion  among  the  members  of  the  combination  the  trade  in 
iron  pipe  within  the  prescribed  part  of  the  United  States.  The  purpose 
of  the  combination  was,  by  establishing  a  community  of  interest  among 
the  manufacturers,  to  destroy  competition  among  them  and  to  mono- 
polize for  their  benefit  the  trade  in  iron  pipe.  Although  in  its  opinion 
the  Court  referred  to  this  transaction  as  "  in  restraint  of  commerce,"  the 
transaction  undoubtedly  constituted  monopolizing  within  the  meaning 
of  the  second  section  of  the  Anti-Trust  Act,  and  if  the  restriction  of  com- 
petition had  not  been  carried  so  far  as  to  constitute  monopolizing  in  vio- 
lation of  the  second  section,  probably  it  would  not  have  been  adjudged 
to  be  illegal.  A  combination,  by  a  partnership  or  otherwise,  to  establish 
a  community  of  interest  among  manufacturers  controlling  only  a  minor 
share  of  the  trade  in  iron  pipe  probably  would  not  have  been  condemned. 
As  pointed  out  above,  the  cases  involving  rate  agreements  among  rail- 
way companies  are  not  authority  for  the  doctrine  that  contracts  or  com- 
binations among  merchants  or  manufacturers  which,  without  mono- 
polizing commerce,  simply  restrict  competition  among  those  contracting 
or  combining,  are  in  violation  of  the  Anti-Trust  Act.  The  decisions  in 
the  railroad  cases  were  based  on  the  ground  that  the  natural  and  direct 


XIII.l 


INTERSTATE  COMMERCE 


447 


effect  of  the  contracts  or  combinations  was  to  restrain  the  trade  or  com- 
merce of  the  public  by  increasing  the  tolls  upon  the  highways  of  inter- 
state commerce. 

At  common  law,  contracts  and  combinations  of  the  class  now  under  Contracts  not 
consideration  were  not  unlawful,  with  this  exception:  a  contract  of  an  unlawful  at 
individual  not  to  exercise  his  craft  or  trade  was  held  to  be  unreasonable,  common  law- 
contrary  to  public  policy,  and  void,  unless  the  contract  was  incidental  to 
carrying  out  some  fair  and  lawful  transaction,  such  as  the  sale  of  a  busi- 
ness or  good-will.  This  exception  was  for  the  purpose  of  protecting  the 
personal  liberty  of  individuals,  and  in  considering  the  effect  of  the  Anti- 
Trust  Act  it  is  not  material.  That  Act  was  not  passed  to  protect  indi- 
viduals against  the  consequences  of  their  own  acts,  but,  as  indicated  by 
its  title,  was  designed  to  enforce  the  broad  policy  of  protecting  the  trade 
and  commerce  of  the  community  against  unlawful  restraints  and  mono- 
polies. Probably  Congress  would  have  no  constitutional  power  to 
pass  a  law  merely  for  the  regulation  of  private  rights,  by  prohibiting 
individuals  under  criminal  penalties  from  entering  into  mutual  contracts 
or  combinations  restricting  their  own  power  to  engage  in  interstate 
trade  or  commerce. 

Many  contracts  and  combinations  that  restrict  competition  simply  When  restrict- 
among  those  contracting  or  combining  are  necessary  to  the  successful   ins  contracts 
conduct  of  trade  and  commerce,  and  such  contracts  and  combinations  necessary- 
always  have  been  considered  reasonable  and  proper  throughout  the 
civilized  world.   If  such  contracts  were  prohibited  by  the  Anti-Trust 
Act,  it  would  be  impossible,  without  incurring  civil  and  criminal  liabil- 
ities, to  carry  on  trade  and  commerce  in  the  United  States.  Certainly 
Congress  never  intended  to  destroy  trade  and  commerce  by  an  Act 
entitled  "An  Act  to  protect  trade  and  commerce  against  unlawful 
restraints  and  monopolies."    .   .    . 

Therefore,  the  first  section  should  be  construed  as  prohibiting  only 
contracts,  combinations,  and  conspiracies  to  restrain  the  liberty  or  power 
of  others,  or  of  the  public  generally,  to  carry  on  interstate  and  inter- 
national commerce  freely  and  without  hindrance.  The  second  section 
should  be  construed  as  dealing  with  the  subject  of  competition  and  as 
prohibiting  contracts,  combinations,  or  conspiracies  to  destroy  competi- 
tion to  such  an  extent  as  to  constitute  monopolizing  as  hereafter  defined. 


4.  Cases  involving  attempts  to  monopolize,  or  combinations  or  conspiracies 
to  monopolize  any  part  of  interstate  or  international  trade  or  commerce. 
In  construing  and  enforcing  the  Anti-Trust  Act  the  principal  difficulty 
is  to  determine  the  precise  meaning  of  the  words  "to  monopolize"  as 
used  in  the  second  section  of  the  Act.  The  question  is  not  whether  indus- 
trial monopolies  are  harmful  or  beneficial  to  the  community,  or  whether 
the  Anti-Trust  Act  embodies  a  sound  economic  or  governmental  policy. 
Judges  cannot  properly  allow  themselves  to  be  influenced  by  their  own 
views  upon  questions  of  political  economy  or  of  state  policy.  It  is  their 
duty  to  give  effect  to  the  will  of  the  legislature  as  declared  in  the 
statutes. 


Meaning  of 
the  words  "to 
monopolize." 


448 


THE  AMERICAN  CONSTITUTION 


[CH. 


The  outcome 
of  collectivism. 


Growth  of 
state  power 
necessarily 
curtails  indi- 
vidual rights. 


Justice 

Harlan's 

forecast. 


No  more  comprehensive  or  scientific  statement  than  the  fore- 
going has  so  far  been  made  of  the  problem  of  problems  that 
reaches  down  'to  the  very  roots  of  our  national  life  as  it  now 
exists.  That  problem  is  the  outcome  of  the  mighty  transition 
that  has  taken  place  from  individualism  to  collectivism.  As 
stated  heretofore  in  the  words  of  another:  "The  power  of 
groups  of  men  organized  by  incorporation  as  joint-stock  com- 
panies, or  of  small  knots  of  rich  men  acting  in  combination,  has 
developed  with  unexpected  strength  in  unexpected  ways,  over- 
shadowing individuals  and  even  communities,  and  showing 
that  the  very  freedom  of  association  which  men  sought  to 
secure  by  law  when  they  were  threatened  by  the  violence  of 
potentates  may  under  the  shelter  of  the  law  ripen  into  a  new 
form  of  tyranny."  As  that  new  form  of  tyranny  has  devel- 
oped, there  has  been  a  corresponding  and  counteracting  devel- 
opment in  state  power,  resulting  in  what  Judge  Baldwin  has 
happily  termed  "the  narrowing  circle  of  individual  rights." 
As  stated  already,  the  new  conditions  which  have  driven  the 
individual  to  depend  as  never  before  for  safety  upon  state 
power  have  compelled  that  power  to  assert  as  never  before  its 
sovereign  right  to  curtail  the  personal  and  property  rights 
of  all  persons,  natural  and  artificial,  when  the  public  welfare 
is  involved.  If  in  1895,  when  the  Supreme  Court  rendered  its 
judgment  in  United  States  v.  Knight  Co.,  generally  known 
as  the  "Sugar  Trust  case,"  it  had  been  more  thoroughly  im- 
pressed with  the  fact  that  the  results  of  the  silent  revolution 
that  has  taken  place  must  now  find  expression  through  judge- 
made  law,  a  different  conclusion  would,  no  doubt,  have  been 
reached.  Mr.  Justice  Harlan  foreshadowed  all  that  was  to 
come  when,  in  his  dissenting  opinion  in  that  case,  he  said: 
"This  view  of  the  scope  of  the  Act  leaves  the  public,  so  far  as 
national  power  is  concerned,  entirely  at  the  mercy  of  combina- 
tions which  arbitrarily  control  the  prices  of  articles  purchased 
to  be  transported  from  one  state  to  another.  I  cannot  assent 
to  that  view.  In  my  judgment,  the  General  Government  is  not 
placed  by  the  Constitution  in  such  a  condition  of  helplessness 
that  it  must  fold  its  arms  and  remain  inactive  while  capital 
combines,  under  the  name  of  a  corporation,  to  destroy  com- 
petition, not  in  one  state  only,  but  throughout  the  entire  coun- 
try, in  the  buying  and  selling  of  articles — especially  the  neces- 


XIII.]  INTERSTATE  COMMERCE  449 

saries  of  life  — -  that  go  into  commerce  among  the  states.  .  .  . 
To  the  General  Government  has  been  committed  the  control  of 
commercial  intercourse  among  the  states,  to  the  end  that  it  may 
be  free  at  all  times  from  any  restraints  except  such  as  Congress 
may  impose  or  permit  for  the  benefit  of  the  whole  country. 
The  common  government  of  all  the  people  is  the  only  one  that 
can  adequately  deal  with  a  matter  which  directly  and  imper- 
iously affects  the  entire  commerce  of  the  country,  which  con- 
cerns equally  all  the  people  of  the  Union,  and  which,  it  must  be 
confessed,  cannot  be  adequately  controlled  by  any  one  state." 
In  1897  that  larger  conception  influenced  the  judgment  ren- 
dered in  United  States  v.  Trans-Missouri  Freight  Association, 
and  in  1904  it  found  full  expression  in  the  Northern  Securities 
Company  case. 

From  the  higher  point  of  view  thus  attained,  the  Supreme  How  the  finer 
Court  is  now  in  a  position  to  solve,  by  the  refined  methods  of  far°b^t  be 
judge-made  law,  a  complex  and  far-reaching  problem  that  can  solved, 
hardly  be  dealt  with  successfully  through  the  coarser  methods 
of  statutory  legislation.  If  an  attempt  should  be  made  so  to 
amend  the  Act  in  question  as  to  make  clearer  the  distinction 
between  lawful  agreements  reasonably  restraining  trade  and 
those  which  are  pernicious  in  their  effect,  a  fresh  appeal  to  the 
courts  for  construction  would  be  the  only  practical  outcome. 
If  the  histories  of  Roman  and  English  law  prove  anything  Teachings  of 
clearly,  it  is  the  fact  that  as  the  relations  of  advancing  societies  Roman  and 
become  more  complex  it  is  the  trained  hand  of  the  jurisconsult 
rather  than  that  of  the  legislator  that  must  solve  the  finer  pro- 
blems that  arise  out  of  them.  No  more  difficult  problems  were 
ever  presented  to  a  judicial  tribunal  than  those  now  pending 
before  the  Supreme  Court  of  the  United  States,  problems  that 
are  the  outcome  of  a  transition  from  individualism  to  collectiv- 
ism in  a  complex  society  governed  by  the  most  nicely  balanced 
of  all  constitutions.  The  supreme  control  of  the  nation  must 
be  asserted  over  interstate  and  international  trade,  including 
all  of  its  instrumentalities,  without  too  great  an  abridgment 
of  individual  rights  under  the  state  constitutions.  Such  pro- 
blems can  only  be  solved  tentatively  bit  by  bit,  in  the  light  of  ex- 
perience. No  attempt  should  be  made  to  give  to  that  part  of 
the  Act  declaring  illegal  "every  contract,  combination,  in  the 
form  of  trust  or  otherwise,  or  conspiracy,  in  restraint  of  trade  or 


450 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Literal  or 
strained  con- 
structions to 
be  avoided. 


Line  dividing 
legitimate 
competitors 
from  mono- 
polists. 


Use  of  unlaw- 
ful means. 


"Judicial  in- 
clusion and 
exclusion." 

Meaning  of 
the  phrase  "to 
monopolize." 


Montague  v. 
Lowry. 


commerce  among  the  several  states,  or  with  foreign  nations," 
a  too  literal  or  strained  construction.  The  Act  does  not  attempt 
to  prohibit  contracts  or  combinations  that  restrain  competition 
in  trade  or  commerce.  The  word  "competition"  does  not  ap- 
pear in  the  Act.  If  it  had  been  the  intention  of  Congress  to  pro- 
hibit all  contracts  and  combinations  that  in  any  degree  dimin- 
ish or  restrict  competition  in  trade  or  commerce,  it  is  likely 
that  such  a  purpose  would  have  been  expressed  in  definite 
terms.  Under  such  conditions  the  judicial  power  should  de- 
fine as  clearly  as  possible  the  line  dividing  the  legitimate  com- 
petitors, who  combine  fairly  and  justly  to  excel  their  rivals  in 
competition  through  the  employment  of  normal  competitive 
methods,  from  the  monopolists,  who  seek  to  suppress  competi- 
tion, and  thereby  to  control  prices,  by  preventing,  through  un- 
lawful means,  other  concerns  from  entering  the  trade  in  com- 
petition with  them.  The  prohibition  should  apply  not  so  much 
to  the  form  the  combination  may  assume,  or  to  the  power  its 
efficiency  may  develop,  as  to  the  use  of  unlawful  means  to 
attain  such  form  or  to  increase  such  power.  Perhaps  it  will  be 
wise  in  attaining  that  result  to  again  employ  the  convenient 
rule  established  in  Davidson  v.  New  Orleans,  in  which  the 
Supreme  Court  said  that  in  order  to  avoid  "the  imminent  risk 
of  a  failure  to  give  any  definition  which  would  be  at  once  per- 
spicuous, comprehensive,  and  satisfactory,"  it  would  adopt 
"  the  gradual  process  of  judicial  inclusion  and  exclusion,  as  the 
cases  presented  for  decision  shall  require,  with  the  reasoning 
on  which  such  decisions  may  be  founded." 

It  will  then  be  necessary  to  give  to  the  phrase,  to  "monopo- 
lize, or  attempt  to  monopolize,  or  combine  or  conspire  with  any 
other  person  or  persons  to  monopolize,  any  part  of  the  trade  or 
commerce  among  the  several  states,  or  with  foreign  nations,"  a 
reasonable  and  well-ascertained  meaning.  As  commerce  cannot 
be  monopolized  as  to  all  articles,  at  all  places,  it  can  be  mono- 
polized, as  a  rule,  only  as  to  some  particular  articles,  and  only 
at  certain  places  or  markets.  As  the  Act  in  question  prohibits 
monopolizing  "any  part"  of  interstate  or  international  com- 
merce, it  appears  that  Congress  intended  to  prohibit  the  mono- 
polizing of  such  commerce  in  any  article  as  to  any  part  of  the 
United  States.  It  was  therefore  decided  in  Montague  v .  Lowry 
that  a  combination  monopolizing  trade  or  commerce  in  unset 


XIII.]  INTERSTATE  COMMERCE  451 

tiles  between  a  part  of  California  and  other  states  was  in  viola- 
tion of  the  Act.  From  that  it  does  not  follow  that  a  combina- 
tion among  all  the  merchants  or  all  the  manufacturers  dealing 
in,  or  producing,  an  article  of  commerce  in  a  particular  state  or 
locality  would  necessarily  be  in  restraint  of  interstate  or  inter- 
national commerce.  As  the  term  "to  monopolize"  is  not  so 
definite  as  to  render  it  easy  to  determine  with  certainty  in  every 
case  whether  it  applies,  the  question  must  ever  recur  whether 
in  a  particular  case  there  was  such  a  destruction  of  competition 
and  such  acquisition  of  control  of  commerce  as  to  constitute 
monopolizing  commerce  as  generally  understood.  It  seems  to 
be  taken  for  granted  that  the  term  "to  monopolize  "  would  not  How  much  of 
apply  to  an  acquisition  of  control  of  less  than  one  half  of  the  ?*  commf  <* 

in  an  article 

commerce  in  an  article,  the  commerce  in  the  greater  part  re-  must  be  mono- 
maining  in  the  hands  of  competitors.  If,  however,  the  control  P01*26*1  ? 
of  substantially  more  than  one  half  of  the  commerce  in  an  arti- 
cle is  acquired,  the  question  then  arises  whether  the  elimin- 
ation of  competition  has  been  carried  to  a  degree  to  render  the 
term  applicable.  As  Congress  has  indicated  no  test  as  to  this 
important  branch  of  the  subject,  the  courts  must  find  a  working 
rule  by  which  they  can  ascertain  in  each  case  whether  the  re- 
striction of  competition  and  the  concentration  of  control  of  com- 
merce have  been  carried  far  enough  to  become  injurious  to  the 
public  by  conferring  upon  a  person  or  group  of  individuals  the 
power  to  control  the  price  of  some  article  of  commerce.  In  the 
border-line  cases  that  must  arise,  the  question  will  be  largely  The  question 
one  of  degree.  "Under  a  complex  civilization  the  lawfulness  of  of  degree- 
acts  often  must  be  made  to  depend  upon  complex  conditions 
and  cannot  be  determined  by  simple  rules  that  can  be  applied 
without  the  exercise  of  discretion  and  in  a  more  or  less  mechan- 
ical manner.  As  has  been  pointed  out  by  the  Supreme  Court, 
even  in  giving  effect  to  constitutional  provisions,  questions  of 
degree  often  are  the  controlling  ones  (Wisconsin  Railroad  Co. 
v.  Jacobson,  179  U.  S.  301).  Similarly,  in  determining  the  law- 
fulness of  acts  of  individuals,  it  often  is  necessary  to  pass  upon 
questions  of  degree,  or  to  determine  what,  under  all  the  circum- 
stances of  a  given  case,  is  reasonable.  Thus  the  courts  may  be 
called  upon  to  pass  upon  the  reasonableness  of  railroad  rates, 
having  regard  to  a  multitude  of  conditions,  including  the  rela- 
tive adjustment  of  rates  between  different  localities.  Such  an 


452  THE  AMERICAN  CONSTITUTION 

inquiry  commonly  would  present  practical  difficulties  at  least 
as  great  as  those  presented  by  an  inquiry  whether  a  given  trans- 
action destroyed  competition  in  interstate  trade  or  commerce 
to  such  an  extent  as  to  put  an  end  to  reasonably  competitive 
conditions  and  to  constitute  what  is  called  *  monopolizing."'1 
In  the  presence  of  such  difficulties  it  would  seem  to  be  wise  for 
Again  the  rule    the  courts,  instead  of  attempting  to  formulate  a  rigid  rule,  to 
andexclu10n     aSam  resort  to  "the  gradual  process  of  judicial  inclusion  and 
sion."  exclusion,"  determining,  in  the  light  of  the  common  under- 

standing of  the  word  "monopolizing,"  whether  or  no  in  the 
particular  case  there  has  been  such  a  destruction  of  competition 
as  to  put  an  end  to  reasonably  competitive  conditions. 
Summary.  No  excuse  should  be  necessary  for  this  somewhat  prolonged 

statement  of  the  most  complex  and  far-reaching  problem  that 
has  so  far  arisen  out  of  the  growth  of  the  American  Common- 
wealth. In  the  words  of  Savigny,  "As  in  the  life  of  individual 
men  no  moment  of  complete  stillness  is  experienced,  but  a  con- 
stant organic  development,  such  also  is  the  case  in  the  life  of 
nations,  and  in  every  individual  element  in  which  this  collect- 
ive life  consists."  In  the  life  of  the  American  people  the  "or- 
ganic development "  has  been  abnormally  rapid,  and  the  conse- 
quent changes  have  been  correspondingly  great.  The  most  im- 
portant phase  of  that  organic  development  is  that  involved  in 
the  transition  from  individualism  to  collectivism  out  of  which 
the  problem  in  question  arose.  How  can  the  constitutional 
machinery  be  so  readjusted  as  to  meet  the  changed  conditions? 
Just  as  the  American  Constitution  is  the  weakest  in  its  lack 
of  power  to  adapt  itself  to  changed  conditions  through  such 
formal  amendments  as  its  cumbrous  machinery  provides,  it 
is  the  strongest  in  its  capacity  to  grow  and  to  adapt  itself  to 
changed  conditions  through  the  subtle  power  of  a  Supreme 
Court  that  can  not  only  annul  a  national  law,  but  so  remould 
it  and  adapt  it  to  changed  conditions  as  to  make  it  an  effective 
working  rule.  There  is  no  reason  to  believe  that  that  tribunal, 
which  has  been  able  to  solve  every  great  problem  submitted 
to  it,  save  one  that  was  not  in  its  nature  justiciable,  will  fail  to 
solve  the  pending  problem  preeminently  justiciable. 
1  Mr.  Morawetz  in  article  cited  above. 


CHAPTER  XIV 

THE  OUTCOME  OF  OUR  GROWTH 

WHEN  the  time  arrived  for  this  nation  to  be  born,  a  solemn  Birthtime  of 
ceremony  was  arranged  and  a  herald  appointed  who  announced  the  natlon- 
the  event  in  a  Declaration  which  has  become  a  part  of  the 
world's  history.  Every  detail  in  the  marvelous  process  of 
growth  which  has  taken  place  since  that  time  has  been  recorded 
with  a  fullness  never  before  known  in  the  life  of  any  people. 
Beginning  with  1790  there  have  been  thirteen  decennial  cen- 
suses, each  one  of  which  has  been  more  complete  and  com- 
prehensive than  its  predecessor.  While  the  data  upon  which 
generalizations  may  be  based  have  been  thus  widening,  Political 
Science  has  been  teaching  as  never  before  the  method  by  which 
the  growth  of  political  communities  should  be  studied  and 
expounded.  Against  such  advantages  in  favor  of  the  making  Rapidity  of  its 
of  accurate  and  comprehensive  generalizations  stands  the  fact  devel°Pment- 
that  the  development  of  no  nation  was  ever  so  rapid,  so  vast, 
so  complex,  —  the  dissolving  views  of  change  have  followed 
each  other  like  the  pictures  in  a  panorama.  "  I  might  plead," 
says  Mr.  Bryce,  "  that  America  changes  so  fast  that  every  few 
years  a  new  crop  of  books  is  needed  to  describe  the  new  face 
which  things  have  put  on,  the  new  problems  that  have  ap- 
peared, the  new  ideas  germinating  among  her  people,  the  new 
and  unexpected  developments  for  evil  as  well  as  good  of  which 
her  established  institutions  have  been  found  capable."1  And 
yet  despite  such  difficulties  certain  products  of  the  growth 
which  has  so  far  taken  place  stand  out  so  clearly  and  distinctly 
defined  that  they  cannot  be  mistaken. 

The  least  difficult  part  of  the  summing-up  now  to  be  made  is  Area  and 
that  which  involves  purely  material  expansion.  According  to  P°pylajion  of 

original  states. 

the  census  of  1790  the  thirteen  original  states  and  two  territo- 
ries had  at  that  time  a  population  of  3,673,570  distributed  as 
follows:  Delaware,  59,096;  Pennsylvania,  434,373;  New  Jersey, 
1 84, 1 39; Georgia, 82,548;  Connecticut, 237,946; Massachusetts, 
The  American  Commonwealth,  i,  2. 


454 


THE  AMERICAN  CONSTITUTION 


[Ci 


Subsequent 
acquisitions. 


378,787;  Maryland,  319,728;  South  Carolina,  249,073;  New 
Hampshire,  141,885;  Virginia,  747»6l°J  New  York,  340,120; 
North  Carolina,  393, 75 1 ;  Rhode  Island,  68,825;  Southwest  and 
Northwest  Territories,  35, 69 1.  While  only  326,378  squaremiles, 
less  than  forty  per  cent  of  their  original  possessions,  are  now 
included  within  the  thirteen  original  states,  the  Republic  began 
its  career  as  a  nation  nominally  possessing  an  area,  derived 
through  the  peace  treaty  of  1783,  of  843,246.  To  that  the  fol- 
lowing additions  have  been  made :  — 

1803.  Louisiana  Purchase 875,025 

1819.  Florida  Purchase 70,107 

1845.  Texas  Annexation 389,795 

1846.  Oregon  Country 288,689 

1848.  Mexican  Cession 523,802 

1853.  Gadsden  Purchase 36,211 

1867.  Alaska 599,446 

1897.  Hawaiian  Islands 6,740 

1898.  Porto  Rico 3,6oo 

1898.  Guam 175 

1899.  Philippine  Islands        143,000 

1899.  Samoan  Islands       73 

1901.  Additional  Philippines 68 


Total  in  square  miles 3,779,977  l 


Existing 
conditions. 


The  forty-six  existing  states  and  territories,  their  population, 
and  the  total  area  occupied  in  1910 


Delaware 
Pennsylvania 
New  Jersey 
Georgia 
Connecticut 
Massachusetts 
Maryland 
South  Carolina 
New  Hampshire 
Virginia 
New  York 
North  Carolina 
Rhode  Island 


Ratified  the 
Constitution 

1787 
1787 
1787 
1788 
1788 
1788 
1788 
1788 
1788 
1788 
1788 
1789 
1790 


*  These  generally  accepted  figures 
have  been  slightly  changed  by  the 
last  census,  as  will  appear  from  the 
following  tables. 


Area  in  square 
miles,  1910* 

2,370 
45,126 

8,224 
59,265 

4,965 

8,266 
12,327 
30,989 

9,341 
42,627 
49,204 
52,426 

1,248 


Population 
in  1910 

202,322 
7,665,111 
2,537,167 
2,609,121 
1,114,756 
3,366,416 
1,295,346 
1,515,400 

430,572 
2,061,612 
9,113,614 
2,206,287 

542,610 


1  These  figures  include  also  the 
water  area. 


XIV.]  THE  OUTCOME  OF  OUR  GROWTH 

States  subsequently  admitted,  in  the  order  of  their  admission 


455 


Date 

Area  in  square 

Population 

admitted 

miles,  I9I01 

in  1910 

Vermont 

1791 

9.564 

355,956 

Kentucky 

1792 

40,598 

2,289,905 

Tennessee 

1796 

42,022 

2,184,789 

Ohio 

1803 

41,040 

4,767,121 

Louisiana 

1812 

48,506 

1,656,388 

Indiana 

1816 

36,354 

2,700,876 

Mississippi 

1817 

46,865 

1,797,114 

Illinois 

1818 

56,665 

5,638,591 

Alabama 

1819 

51,998 

2,138,093 

Maine 

1820 

33,040 

742,371 

Missouri 

1821 

69,420 

3.293,335 

Arkansas 

1836 

53,335 

1,574,449 

Michigan 

1837 

57,98o 

2,810,173 

Florida 

1845 

58,666 

752,619 

Texas 

1845 

265,896 

3,896,542 

Iowa 

1846 

56,147 

2,224,771 

Wisconsin 

1848 

56,066 

2,333,860 

California 

1850 

158,297 

2,377,549 

Minnesota 

1858 

84,682 

2,075,708 

Oregon 

1859 

96,699 

672,765 

Kansas 

1861 

82,158 

1,690,949 

West  Virginia 

1863 

24,170 

1,221,119 

Nevada 

1864 

110,690 

81,875 

Nebraska 

1867 

77.520 

1,192,214 

Colorado 

1876 

103,948 

799,024 

North  Dakota 

1889 

70,837 

577,056 

South  Dakota 

1889 

77,6i5 

583,888 

Montana 

1889 

146,997 

376,053 

Washington 

1889 

69,127 

1,141,990 

Wyoming 

1890 

97,9H 

145,965 

Idaho 

1890 

83,888 

325,594 

Utah 

1895-90 

84,990 

373,351 

Oklahoma 

1907 

70,057 

1,657,155 

New  Mexico1 

122,634 

327,301 

Arizona 

"3,956 

204,354 

Outlying 

Possessions 

Date  of 

Area  in  square 

Population 

accession 

miles,  1910* 

in  1910 

Alaska 

1867 

590,884 

64,356 

Hawaii 

1898 

6,449 

191,909 

Guam 

1899 

201 

io,o8o» 

Philippines 

1899 

119,542 

7,635,426* 

Porto  Rico 

1899 

3,435 

1,118,012 

Samoa 

1900 

81 

6,832* 

1  Includes  water  area. 

soon  entitle  them  to 

statehood. 

8  New  Mexico  and  Arizona  are 

1  Estimated. 

completing  the  process 

which  will 

4  Census  of  1903. 

Existing 
conditions. 


456 

Summary. 


THE  AMERICAN  CONSTITUTION 

AREA   OF  THE   UNITED   STATES1 

Area,  square  miles 


[CH. 


Date 

Land 

Water 

Total 

Original  Territory 

1790 

820,377 

22,878 

843,255 

Louisiana  Purchase 

1803 

868,896 

11,589 

880,485 

Disputed  Territory 

1803 

10,518 

402 

10,920 

Florida 

1819 

54,861 

3,805 

58,666 

Texas 

1845 

386,040 

3,712 

389,752 

Oregon  Territory 

1846 

281,251 

4,085 

285,336 

Mexican  Cession 

1848 

520,967 

6,155 

527,122 

Gadsden  Purchase 

1853 

31,249 

4 

3i,253 

Total 

2,974,159 

52,630 

3,026,789 

Continental  United  States 

Alaska 

1867 

Hawaii 

1898 

Guam 

1899 

Philippines 

1899 

Porto  Rico 

1899 

Samoa 

1900 

Total 


Total  area l 
3,026,789 

590,884 

6,449 
201 

"9,542 

3,435 
81 

3,747,381 


POPULATION  OF  THE  UNITED  STATES 

Total  Area  of  Enumeration,  Continental  United  States,  and  Noncontiguous 
Territory:  1910  and  1900 


1910 

1900 

THE  UNITED  STATES  (total  area  of  enumeration) 

93,402,151 

77,256,630' 

Continental  United  States    

91,972,266 

75,QQ4..S7P» 

Noncontiguous  territory   .  . 

1,4.20,  88s 

I  262  OS5 

Alaska  ...    . 

64,  ^56 

67  tCQ2 

Hawaii  

191,909 

IS4..OOI 

Porto  Rico 

1,118,012 

QC-3   2J.^8 

Persons  in  military  and  naval  service  sta- 
tioned abroad    

1 

55,6o8 

01,210 

1  Includes  water  area. 

2  Includes  953,243  persons  enum- 
erated in  Porto  Rico  in  1899. 


8  According  to  the  census  of  Porto 
Rico,  taken  in  1899  under  the  direc- 
tion of  the  War  Department. 


XIV.]  THE  OUTCOME  OF  OUR  GROWTH  457 

The  rate  of  increase  from  1900  to  1910  was  20.9  per  cent  for 
the  total  area  of  enumeration  and  21  per  cent  for  continental 
United  States.  It  will  be  noted  that  Table  I  does  not  cover 
other  possessions  of  the  United  States  than  the  ones  mentioned. 
Including  the  population  of  the  Philippine  Islands,  as  enumer- 
ated by  the  census  of  1903  under  the  direction  of  the  War 
Department,  7,635,426,  and  adding  estimates  for  the  islands 
of  Guam  and  Samoa  and  the  Canal  Zone,  the  total  population 
of  the  United  States  and  possessions  is  about  lOijoOjOOO.1 

In  breaking  away  from  the  mother  country,  the  English  col-  Constitutional 
onies  in  America  made  an  original  contribution  to  the  Science  A^riraiTii" 
of  Politics  which  has  deeply  affected  their  entire  after  history,  vention. 
It  has  ever  been  an  elementary  principle  of  American  consti- 
tutional law  that  every  state  legislature  is  endowed  by  its  very 
nature  with  the  omnipotence  of  the  English  Parliament,  save 
so  far  as  that  omnipotence  is  restrained  by  express  constitu- 
tional limitations.  That  principle  embodies  the  fundamental 
difference  that  divides  two  kindred  political  systems,  the  one 
resting  on  the  sovereignty  of  the  people  as  expressed  in  written 
constitutions,  the  other  on  the  sovereignty  of   Parliament. 
Such  limitations,  of  which  the  European  world  knew  nothing, 
grew  naturally  out  of  the  process  through  which  American 
legislatures   came  into  existence.   From  the  very  beginning  Powers  of  co- 
the  powers  of  the  colonial  assemblies  were  more  or  less  limited  ti^limitS 
through  the  terms  of  the  charters  by  which  such  assemblies  by  charters. 
were  either  created  or  recognized.  In  colonial  times,  if  statutes 
were  passed  in  excess  of  the  powers  conferred  by  the  charter, 
the  question  was  tested,  in  the  first  instance,  in  the  colonial 
courts,  or,  if  the  matter  was  taken  to  England,  by  the  Privy 
Council.  After  the  severance  from  the  mother  country,  that 
power  to  annul  an  unconstitutional  law  was  simply  assumed, 
without  any  express  grant  from  the  people,  by  the  state  courts. 
Paper  constitutions,  defining  in  a  dogmatic  form  the  circle  of 
individual  rights  surrounding  the  citizen  into  which  state  power 
must  not  intrude,  was  a  French  invention;  the  right  of  the  judi- 
cial power  to  strike  down  as  void  any  such  unlawful  intrusion 
was  an  American  invention,  the  first  and  only  one  to  which  our 
state  system  has  so  far  given  birth.  As  the  invention  in  ques- 

»  Taken  from  Bulletin  no.  109  of  the  Thirteenth  Census  of  the  United 
States,  1910. 


458 


THE  AMERICAN  CONSTITUTION 


[Cn. 


A  confedera- 
tion of  the 
old  type. 


Failure  of  first 

American 

experiment. 


Attributes 
of  the  new 
creation. 


tion  has  been  lifted  up  from  the  state  system  into  the  federal 
system,  its  importance  can  hardly  be  overestimated.  It  may 
be  said  to  be  the  corner-stone  of  the  entire  constitutional  fabric. 
Sufficient  emphasis  has  been  given  already  to  the  fact  that 
in  their  first  effort  American  statesmen  exhibited  no  fertility 
whatever  in  the  making  of  federal  constitutions.  They  simply 
copied  the  one  type  which  had  existed  from  the  days  of  the 
Greek  leagues, — a  confederation  with  the  entire  federal  power 
vested  and  confused  in  a  one-chamber  assembly,  without  an  exe- 
cutive head,  without  a  judiciary,  and  without  the  power  to  tax. 
Our  first  Federal  Constitution  vested  all  power  in  a  one-cham- 
ber Congress,  which  could  make  treaties  with  foreign  nations, 
without  the  power  to  force  the  states  to  observe  them;  it  alone 
could  decide  controversies  between  the  states,  and  yet  it  could 
not  enforce  the  final  decree;  it  could  declare  war,  but  it  could 
raise  neither  men  nor  money  save  through  the  old  and  ineffect- 
ual system  of  requisitions  upon  the  states  as  states.  FederaK 
ism,  which  as  a  system  of  government  already  stood  low  enough 
in  the  estimation  of  mankind,  was  put  in  no  better  plight  by 
the  first  American  experiment.  On  the  contrary,  the  com- 
pleteness of  its  failure  served  as  a  final  demonstration  that  the 
old  type  of  a  federal  government  was  no  longer  adapted  to 
modern  conditions.  At  that  juncture  a  great  genius  appeared 
who  was  fortunately  a  political  economist  and  a  financier,  be- 
cause the  mighty  problem  to  be  solved  involved  primarily  the 
invention  of  a  federal  system  armed  first  with  the  power  to  tax; 
second,  with  the  power  to  regulate  commerce  with  foreign  na-  • 
tions  and  between  jealous  and  discordant  states.  The  outcome 
was  a  unique  creation  which  differed  from  all  preceding  federal 
systems  in  the  following  particulars:  first,  it  possessed  the 
power  to  tax,  something  never  heard  of  before  in  the  world's 
history;  second,  the  federal  head  was  divided  into  three  depart- 
ments — legislative,  executive,  and  judicial — operating  directly 
upon  individuals,  something  never  heard  of  before  in  the  world's 
history;  third,  the  federal  assembly  was  divided  into  two  cham- 
bers instead  of  one,  something  never  heard  of  before  in  the 
world's  history;  fourth,  the  federal  judiciary  was  armed  with 
the  power  to  put  the  stamp  of  nullity  upon  a  national  law, 
something  never  heard  of  before  in  the  world's  history.  By 
that  "wholly  novel  theory,"  as  Tocqueville  has  called  it,  fed- 


XIV.]  THE  OUTCOME  OF  OUR  GROWTH  459 

eralism  as  a  system  of  government  has  been  revolutionized  and  Federal  gov- 
placed  upon  an  entirely  new  basis.  Since  its  advent  the  an- 
cient  type  of  a  federal  government  as  embodied  in  the  Articles 
of  Confederation  has  been  abolished,  not  only  in  the  United 
States  but  throughout  the  world.  It  may  therefore  be  said  that 
the  outcome  of  our  growth  is  a  new  type  of  state  government 
in  which  the  rights  of  the  citizen  are  guarded  by  constitutional 
limitations  enforceable  by  the  judicial  power  against  all  other 
powers;  second,  a  new  type  of  federal  government,  operating 
directly  upon  the  citizen  and  not  upon  the  states  as  corporations, 
and  organized  upon  the  peculiar  principles  described  above. 

The  new  type  of  federal  government  invented  here  in  1783  Federation 
is  asserting  a  marked  influence  upon  federalism  as  a  system  of  °f  Bl?tish 
government  the  world  over.  It  is  even  reacting  upon  the  Con- 
stitution of  the  mother  country,  which  has  heretofore  abhorred 
the  idea  of  federation  in  every  form.  There  is  now  pending 
a  serious  proposal  for  the  calling  of  a  constitutional  convention 
to  deal  with  the  whole  subject  of  the  federation  of  the  British 
Empire,  —  one  of  the  most  majestic,  and  at  the  same  time  one 
of  the  most  urgently  necessary  measures  with  which  British 
statesmanship  has  ever  been  confronted.  It  is  hard  to  conceive 
how  that  incoherent  mass  of  widely  scattered  dominions  can  be 
held  together  much  longer  under  modern  conditions,  without 
the  aid  of  the  one  natural  and  possible  expedient.  It  is  stated 
in  the  public  press  that  those  members  of  the  Government  who 
are  opposed  to  giving  Ireland  the  degree  of  independence  pos- 
sessed by  Canada  and  Australia,  are  "willing  to  concede  to  her 
relations  to  the  Imperial  Government  similar  to  those  that  bind 
Ohio  to  Washington  or  Ontario  to  the  Dominion  of  Canada." 
The  North  American  type  of  federal  government  has  already  Federal 
been  reproduced,  with  more  or  less  exactness,  in  the  four  federal  unions  of 
unions  of  Latin  America :  the  United  States  of  Mexico ;  the 
Argentine  Nation ;  the  United  States  of  Brazil ;  and  the  United 
States  of  Venezuela.  The  superstructures  of  the  four  federal 
states  in  question  approach  very  closely  to  the  prototype  after 
which  they  were  modeled.  Each  embodies  the  "wholly  novel 
theory"  of  a  federal  government,  —  strictly  organized,  and 
divided  into  three  departments,  executive,  legislative,  and  judi- 
cial, — operating  directly  upon  individuals  and  not  upon  states  constjtution 
as  corporations.  The  constitution  of  Mexico,  which  will  be  of  Mexico. 


460  I  THE  AMERICAN  CONSTITUTION  [Cu. 

taken  as  typical,  provides  that  "the  supreme  power  of  the  fed- 
eration is  divided  for  its  exercise  into  legislative,  executive,  and 
judicial.  Two  or  more  of  these  powers  shall  never  be  united  in 
one  person  or  corporation,  nor  shall  the  legislative  power  be 
vested  in  one  individual."  It  is  then  provided  that  "the  legis- 
lative power  of  the  nation  is  vested  in  a  general  congress,  which 
shall  consist  of  a  chamber  of  deputies  and  a  senate."  The 
exclusive  powers  of  each  house  and  their  relations  to  each  other 
as  coordinate  bodies  are  substantially  the  same  as  in  the  North 
American  system.  In  Mexico  the  judicial  power  is  vested  in  a 
Supreme  Court,  and  in  district  and  circuit  courts,  whose  juris- 
diction extends,  in  a  general  way,  to  all  matters  of  which  our 
federal  courts  have  jurisdiction,  except  that  they  have  no  juris- 
diction of  causes  arising  under  their  constitution,  and  under 
laws  affecting  private  interests  only,  such  being  vested  in  the 
state  courts.  Neither  have  the  Mexican  federal  courts  jurisdic- 
tion of  cases  on  the  ground  of  diverse  citizenship.  But  the  juris- 
diction over  controversies  between  a  state  and  the  citizen  of 
another  state,  denied  by  our  Eleventh  Amendment,  still  exists 
in  that  system.  The  jurisdiction  of  the  Supreme  Court  is 
appellate,  except  in  controversies  between  state  and  state,  be- 
tween Union  and  state,  as  to  questions  of  jurisdiction  between 
the  tribunals  of  states,  between  federal  tribunals  asserting  con- 
flicting jurisdictions,  and  between  state  and  federal  tribunals.1 
A  glaring  sole-  It  would  be  a  grave  error  to  assume  that  the  unique  federal 
sttotioifoT  creation  as  it  emerged  from  the  Federal  Convention  of  1787 
1787.  was  a  complete  creation,  logically  symmetrical  in  all  its  parts. 

The  fact  is  that  it  rested  on  a  glaring  solecism  that  was  never 
removed  until  the  adoption  of  the  Fourteenth  Amendment. 
The  new  principle  which  became  the  basis  of  the  more  perfect 
union,  and  which  imparted  to  it  its  distinctive  character,  was 
that  the  sum  of  federal  power  vested  in  the  new  Constitution 
should  operate  not  upon  states  in  their  corporate  capacity  but 
directly  upon  individuals.  If  that  principle  had  been  carried 
at  the  time  of  its  adoption  to  its  logical  conclusion,  it  would 
then  have  been  settled  that  the  individuals  upon  whom  the 
new  government  was  to  act  should  be  primarily  its  own  citi- 

1  See  the  paper  read  by  Mr.  W.  H.  Comparative  Study  of  the  Constitu- 
Burgess  before  the  Texas  Bar  Asso-  tions  of  the  United  States  of  Mexico 
ciation,  July  13,  1905,  entitled  "A  and  the  United  States  of  America." 


XIV.]  THE  OUTCOME  OF  OUR  GROWTH  461 

zens.    No  greater  logical  anomaly  can  be  imagined  than  a  fed- 
eral government  acting  directly  upon  individuals,  and  yet  a 
government  without  citizens  in  its  own  right.  The  founders  of  A  government 
the  new  Constitution  did  not  attempt  to  do  more  than  estab-  ^ou 
lish  an  interstate  citizenship  to  which  they  imparted  the  qual- 
ities of  uniformity  and  equality  by  denying  to  every  state  the 
right  to  discriminate  in  favor  of  its  own  citizens  as  against  those 
of  any  other  state.  There  was  no  attempt  whatever,  either  in 
the  Constitution  of  1787  itself,  or  in  any  Act  of  Congress  passed 
after  its  adoption,  to  establish  or  define  citizenship  of  the  United 
States,  as  such,  as  a  distinct  and  independent  thing  from  state 
citizenship.  When  Dred  Scott  brought  his  suit  in  a  United  Vital  question 
States  Circuit  Court  to  establish  the  freedom  of  himself,  his  **  Dred  Scott 

case. 

wife,  and  their  two  children,  the  vital  question  was  whether  a 
free  negro  of  African  descent,  whose  ancestors  were  imported 
into  this  country  and  sold  as  slaves,  could  be  a  citizen  of  the 
United  States,  under  the  Judiciary  Act,  and  as  a  citizen  sue  in 
a  Circuit  Court  of  the  United  States.  Mr.  Justice  Curtis,  who 
dissented,  said:  "That  the  Constitution  itself  has  defined  citi- 
zenship of  the  United  States  by  declaring  what  persons,  born 
within  the  several  states,  shall  or  shall  not  be  citizens  of  the 
United  States,  will  not  be  pretended.  It  contains  no  such  de- 
claration." l  It  was  not  so  defined  because  it  did  not  exist  even 
in  the  imaginations  of  the  men  who  made  the  Constitution  of 
1787;  it  was  an  aftergrowth  that  emerged  from  the  newborn 
spirit  of  nationality  that  Constitution  created.  After  the  con- 
ception of  a  national  citizenship  thus  came  into  being,  it  was  de- 
fined for  the  first  time  in  that  section  of  the  Fourteenth  Amend-  New  citizen- 
ment  which  provides  that  "all  persons  born  or  naturalized  ^Fourteenth 
in  the  United  States,  and  subject  to  the  jurisdiction  thereof,  Amendment. 
are  citizens  of  the  United  States  and  of  the  state  wherein  they 
reside.  No  state  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States,  nor  shall  any  state  deprive  any  person  of  life,  liberty, 
or  property,  without  due  process  of  law ;  nor  deny  to  any  per- 
son within  its  jurisdiction  the  equal  protection  of  the  laws." 
In  describing  the  Act  of  Settlement,  Hallam  has  said  that  it 
is  "the  seal  of  our  constitutional  laws,  the  complement  of  the 
Revolution  itself,  and  the  Bill  of  Rights." 2  So  it  may  be  said 
1  19  How.  575.  *  Const.  Hist.,  iii,  196. 


462 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Transition 
from  individ- 
ualism to  col- 
lectivism. 


Dread  of 
state  power 
nurtured 
by  French 
Revolution. 


Its  effect  upon 
Jefferson. 


"Narrowing 
circle  of  indi- 
vidual rights." 


that  the  section  in  question,  which  created  the  new  national 
citizenship  and  then  guarded  it  by  a  new  Magna  Carta,  is  the 
constitutional  capstone  of  our  nationality  finally  put  in  place 
by  the  hand  of  civil  war.  It  is  really  a  new  creation,  and  as 
such  the  most  important  product  of  our  national  growth  since 
the  adoption  of  the  Constitution  itself. 

It  is  difficult  to  define  briefly  the  outcome  of  the  silent  yet 
profound  transition  that  has  taken  place  in  our  national  life 
from  a  state  of  things  in  which  the  citizen  was  surrounded  by  a 
wide  circle  of  individual  rights,  free  from  the  intrusion  of  gov- 
ernmental power,  either  state  or  federal,  to  a  state  of  things  in 
which  that  circle  has  been  seriously  narrowed  by  the  constant 
invasion  of  such  power,  both  state  and  federal,  at  the  invita- 
tion of  the  citizen  himself.  The  fact  is  that  the  greater  part  of 
those  who  founded  this  Republic  were  driven  from  the  mother 
country  and  from  other  countries  by  the  cruel  exercise  of  state 
power,  and  the  dread  of  that  power  thus  begotten  was  after- 
wards nurtured  by  the  teachings  of  the  French  Revolution, 
which  was  primarily  an  explosion  caused  by  the  extreme  and 
all-pervading  enforcement  of  state  power.  It  is  not  therefore 
strange  that  in  drafting  the  original  state  constitutions  the 
founders  should  have  taken  every  possible  precaution  to  man- 
acle the  monster  representing  state  power  with  every  restraint 
that  such  instruments  could  impose.  When  the  time  came  for 
the  advent  of  the  existing  Federal  Constitution,  an  effort  was 
made  to  attain  the  same  end  through  the  creation  of  a  govern- 
ment of  strictly  delegated  powers.  Just  after  the  foundations 
were  thus  laid,  Jefferson  returned  from  France  (1789),  engrossed 
by  the  opening  scenes  of  the  French  Revolution  and  ready  to 
preach  the  gospel  of  non-interference  by  governmental  power, 
state  or  federal,  within  that  wide  circle  of  individual  right,  so 
clearly  defined  in  the  "Declaration  of  the  Rights  of  Man." 
Such  were  the  conditions  under  which  Jefferson  became  the 
apostle  of  state  sovereignty  and  decentralization.  With  that 
background  clearly  in  view,  it  is  hard  not  to  be  startled  by  the 
contrast  when  we  look  upon  existing  conditions  in  which  "the 
narrowing  circle  of  individual  rights"  is  the  product  of  an 
appeal  made  by  the  citizen  himself  to  governmental  power,  state 
and  federal,  for  protection  against  the  incorporated  masses 
marshaled  against  him.  In  the  preceding  chapter  an  effort  has 


XIV.]  THE  OUTCOME  OF  OUR  GROWTH  463 

been  made  to  demonstrate  that  that  changed  attitude  of  the 
citizen  to  governmental  power  was  the  inevitable  result  of  the 
growth  of  collectivism,  the  outcome  "of  the  great  industrial-  The  industrial 
ism,  which,  after  a  long  period  of  preparation  and  gradual  r 
growth,  began  to  reach  its  culminating  point  with  the  inven- 
tions and  technical  improvements,  with  the  application  of 
steam  and  the  rise  of  the  factory  system,  in  England  toward 
the  end  of  the  eighteenth  century.  Under  this  system  indus- 
try was  organized  into  a  vast  social  operation,  and  was  thus 
already  socialized ;  but  it  was  a  system  that  was  exploited  by 
the  individual  owner  of  the  capital  at  his  own  pleasure  and  for 
his  own  behoof.  Under  the  pressure  of  the  competition  of 
the  large  industry,  the  small  capitalist  is  gradually  crushed  out 
and  the  working  producers  become  wage-laborers  organized  and 
drilled  in  immense  factories  and  workshops.  The  development 
of  this  system  still  continues,  and  is  enveloping  the  whole 
world.  Such  is  the  industrial  revolution."  l  Charles  Lamb 
once  said  that  the  whole  Atlantic  Coast  presented  itself  to  his 
mind  as  one  long  counter  spread  with  wares.  As  we  have  been 
from  the  outset  a  commercial  and  industrial  people,  it  is  not 
strange  that  we  should  have  felt  the  full  force  of  this  world- 
wide industrial  revolution  which  has  been  strong  enough  here 
to  change  the  attitude  of  the  citizen  to  the  state  itself. 

The  problems  that  engrossed  the  statesmen  of  this  country  Transition 
from  the  adoption  of  the  Constitution  in  1789  down  to  the  £°™o^ob^a 
Civil  War  were  distinctly  political.  The  nature  of  the  Constitu-  problems!11 
tion  itself,  the  organization  of  governmental  machinery,  the 
reorganization  of  parties  for  the  control  of  that  machinery,  the 
rights  of  nullification  and  secession,  the  constitutional  right  to 
perpetuate  and  extend  slavery,  were  all  questions  distinctly 
political.  Out  of  the  transition  from  individualism  to  collect- 

1  See  Kirkup's  article  on  "Social-  ture  of  textile  fabrics.  That  of  Saint- 
ism"  in  Enc.  Brit.  9th  ed.  xxii,  207.  Simon  was  the  result  of  the  revolu- 
"The  first  forms  of  socialism  in  the  tion  in  the  world  of  thought  that  oc- 
nineteenth  century  were  the  off-  curred  mainly  in  France  through  the 
spring  of  two  great  revolutions  that  influence  of  Montesquieu,  Voltaire, 
occurred  in  the  eighteenth.  That  of  Rousseau,  and  the  Encyclopedists." 
Robert  Owen  came  from  the  indus-  ,  John  W.  Perrin  on  "The  German 
trial  revolution  in  England  that  Social  Democracy,"  in  the  North 
followed  the  inventions  of  Watt,  American  Review,  October,  1910, 
Crompton,  Hargreaves,  and  Ark-  464. 
wright,  revolutionizing  the  manufac- 


464 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Struggle  of  the 
masses  against 
monopoly. 


"The  Colossus 
of  business." 


Old  dread  of 
governmental 
power  dis- 
carded. 


ivism,  from  slavery  to  freedom,  from  an  epoch  of  political 
development  to  one  of  material  development,  have  arisen 
since  the  Civil  War  a  set  of  new  problems  distinctly  economic. 
Chief  among  them  are  those  involved  in  the  struggle  of  the 
masses  against  the  power  of  combined  money  and  of  private 
monopoly  now  exercised  by  groups  of  men  incorporated  in 
joint-stock  companies,  or  by  small  knots  of  very  rich  men  act- 
ing in  trust  combinations.  As  an  acute  observer  has  recently 
expressed  it:  "Corporations  have  come  to  cover  greater  areas 
than  states ;  have  come  to  live  under  a  greater  variety  of  laws 
than  the  citizen  himself ;  have  excelled  states  in  their  budgets, 
and  loomed  bigger  than  whole  commonwealths  in  their  influ- 
ence over  the  lives  and  fortunes  of  entire  communities  of  men. 
Centralized  business  has  built  up  vast  structures  of  organiza- 
tion and  equipment  which  overtop  all  states,  and  seem  to  have 
no  match  or  competition  except  the  Federal  Government  itself, 
which  was  not  intended  for  such  competitions.  Amid  a  con- 
fused variety  of  states  and  statutes  stands  now  the  Colossus 
of  business,  uniform,  concentrated,  poised  upon  a  single  plan, 
governed  not  by  votes  but  by  commands,  seeking  not  service 
but  profits.  .  .  .  Many  modern  corporations  wield  revenues 
and  command  resources  which  no  ancient  state  possessed,  and 
which  some  modern  bodies  politic  show  no  approach  to  in  their 
budgets.  The  economic  power  of  society  itself  is  concentrated 
in  them  for  the  conduct  of  this,  that,  or  the  other  sort  of  busi- 
ness. The  functions  of  business  are  differentiated  and  divided 
amongst  them,  but  the  power  of  each  function  is  massed.  .  .  . 
Society,  in  short,  has  discovered  a  new  way  of  massing  its 
resources  and  its  power  of  enterprise,  is  building  up  bodies 
economic  outside  its  bodies  politic,  which  may,  if  we  do  not 
find  the  means  to  prevent  them,  the  means  of  disclosing  the 
responsibilities  of  the  men  who  compose  them,  dominate  bodies 
politic  themselves."1 

In  order  to  deal  effectively  with  such  conditions,  under 
which  the  control  of  daily  subsistence  and  the  means  of  trans- 
portation and  communication  of  the  nation  has  passed  to  the 
financiers,  the  American  people  has  resolved  to  discard 
its  old  dread  of  governmental  power.  In  the  place  of  that 

1  Woodrow  Wilson's  address  before  ^the  American  Bar  Association, 
August  31,  1910. 


XIV.]  THE  OUTCOME  OF  OUR  GROWTH  465 

dread  it  has  substituted  the  conviction  that  as  all  govern- 

ments, state  and  federal,  are  the  creatures  of  the  people,  it 

should  not  fear  to  use  them  as  its  instruments.   After  more 

than  a  century  of  profound  distrust  of  itself  the  disenthralled 

American  democracy  is  at  last  becoming  conscious  of  its 

sovereign  powers.  By  the  spread  of  the  direct  primary  system 

it  is  ascertaining  its  own  will,  in  order  that  it  may  be  applied 

by  direct  legislation,  state  and  federal,  to  every  problem  to  be 

solved.    In  an  address  delivered  at  Edinburgh,  in  1883,  Mr.  Words  of 

Goschen  said:  "How  is  it  that  while  the  increasing  democracy  Mr>  Goschen- 

at  home  is  insisting,  with  such  growing  eagerness,  on  more 

control  by  the  state,  we  see  so  small  a  corresponding  develop- 

ment of  the  same  principle  in  the  United  States  or  in  Anglo- 

Saxon  colonies?   It  is  clearly  not  simply  the  democratic  spirit 

which  demands  so  much  central  regulation.     Otherwise  we 

should  find  the  same  conditions  in  the  Anglo-Saxon  demo- 

cracies across  the  seas."     If  that  statesman  should  now  cast 

his  eyes  upon  the  vastest  of  all  Anglo-Saxon  democracies, 

he  would  find  it  fully  aroused,  and  more  eager  perhaps  than 

that  of  Britain  to  extend  state  interference  in  every  possible 

direction.  The  Secretary  of  Commerce  and  Labor  has  very 

recently  declared  in  a  public  address  that  "there  is  reason  to  be-  Abnormal  de- 

lieve  that  by  degrees  the  demands  upon  the  Government  have  Government 

outgrown  legitimate  bounds.  We  certainly  look  to  the  Govern- 

ment for  the  accomplishment  of  things  that  have  heretofore 

been  regarded  as  foreign  to  it."  With  a  keen  appetite  for  legis- 

lation, in  an  age  specially  prolific  of  legislation,  the  American 

democracy  is  applying  the  full  force  of  the  legislative  power, 

state  and  federal,  to  the  supervision  and  control  of  corporate 

organization  in  every  form  it  can  possibly  assume.  That  pro- 

cess is  going  on  under  the  conviction  that  such  organization, 

an  indispensable  convenience  in  the  transaction  of  business,  is 

not  to  be  abolished.  The  purpose  is  to  subordinate  it  to  the 

public  policy  of  the  state,  and  to  subject  the  actual  managers 

who  wield  the  power  of  thousands  to  strict  legal  responsibility. 

The  legal  fiction  that  corporations  can  do  no  wrong  will  no 

longer  be  permitted  to  shelter  the  governing  bodies  that  direct 

and  use  them  for  illegitimate  and  selfish  purposes,  to  the  injury 

of  society  and  the  serious  impairment  of  private  rights.  The          * 


ultimate  end  to  be  attained  is  the  reestablishment  of  the  rights  of  individual. 


466 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Demand  for 


of  the  individual  so  far  as  that  may  be  accomplished  under  the 
new  conditions  which  the  great  economic  and  industrial  re- 
volution has  brought  about.  That  such  a  revolution  has  taken 
place  it  would  be  folly  to  deny,  —  "the  transition  we  are  wit- 
nessing is  no  equable  transition  of  growth  and  normal  altera- 
tion, no  silent,  unconscious  unfolding  of  one  age  into  another, 
its  natural  heir  and  successor."  The  American  democracy, 
following  in  the  footsteps  of  the  English  democracy,  is  now  in 
the  act  of  reconstructing  political  society  in  such  a  way  as  to 
make  it  conform  to  the  profound  changes  that  have  already 
taken  place  in  economic  society.  As  law  is  simply  a  living  and 
growing  organism,  which  changes  as  the  relations  of  society 
change,  the  new  schemes  of  legislation  now  being  enacted  are 
simply  the  outward  manifestations  of  the  changes  that  have 
taken  place  within.  In  the  making  of  such  changes  the  two 
English-speaking  democracies  are  animated  with  a  boldness, 
an  originality,  a  contempt  for  the  past,  never  manifested  before. 
We  are  in  the  midst  of  a  transition  that  demands  creative 
creative  states-  statesmanship.  The  old  plan  of  "broadening  down  from  pre- 
cedent to  precedent"  has  yielded  to  a  manifest  purpose  to  re- 
examine  the  entire  economic  and  political  fabric,  with  the 
definite  object  of  inaugurating  comprehensive  changes  through 
the  enactment  of  well-digested  schemes  of  positive  law. 

Out  of  the  economic  revolution  which  is  still  in  progress  there 
has  arisen  an  insistent  outcry  for  the  unification  of  American 
law.  Serious  as  the  obstacles  in  the  path  of  such  an  under- 
taking really  are,  they  are  scarcely  more  serious  than  those 
that  impeded  a  like  effort  made  in  France  out  of  which  finally 
emerged  the  Code  Napoleon.  It  had  been  estimated  that  in 
the  France  of  the  tenth  century  there  were  three  hundred  and 
sixty  different  kinds  or  groups  of  customary  laws.  Only  with 
the  history  of  such  precedent  conditions  clearly  in  view  can 
we  grasp  the  real  nature  of  the  marvelous  work  of  codification, 
made  possible  at  last  by  that  abrupt  and  profound  break  with 
the  past  known  as  the  French  Revolution.  The  effort  to  work 
a  reform  through  the  creation  of  a  uniform  code,  which  origin- 
ated in  the  Constituent  Assembly  with  the  dreamers  of  the 
Rousseau  school,  never  began  in  earnest  until  1800,  when 
Napoleon,  as  First  Consul,  appointed  Tronchet  as  the  head  of 
a  commission  which  completed  the  draft  in  four  months.  The 


Unification  of 
American  law. 


XIV.]  THE  OUTCOME  OF  OUR  GROWTH  467 

entire  work,  finished  in  about  four  years,  was  published  in  1 8O4.1  Code  Napo- 
Thus  out  of  a  prolonged  and  critical  process  finally  emerged  K]gJ^^" 
the  most  famous  modern  code  of  substantive  law,  consisting  of  four  years, 
twenty-two  hundred  and  eighty-one  sections,  arranged  under 
titles  and  divided  into  three  books,  preceded  by  a  preliminary 
title.   It  was  the  final  product  of  the  fusion  of  the  customary 
laws,  —  wholly  excluding  all  feudal  laws  and  customs, — of  royal 
ordinances  and  laws  of  the  Revolution,  and  of  the  vital  prin- 
ciples of  Roman  private  law,  stated  with  the  greatest  possible 
clearness  and  brevity. 

On  January  I,  1900,  just  a  century  after  Tronchet  and  his  New  German 
colleagues  began  to  draft  the  Code  Napoleon,  was  officially  Codeofl9oo. 
promulgated  a  new  general  code  for  the  whole  German  Em- 
pire.   We  should  be  able  to  look  with  confidence  for  an  out- 
line of  that  code  to  the  world-famous  jurist,  Dr.  Rudolph  Sohm, 
who  was  the  leading  member  of  the  commission  that  made  it.2 
From  him  we  learn  that  as  the  farmer  and  the  merchant  are 
and  have  been  the  two  great  powers  in  German  history,  the 
industrial  and  agrarian  laws  that  survive  may  be  compared 
to  the  jus  civile,  while  the  laws  of  the  Civil  Code  may  be  said  to 
resemble  the  Roman  jus  gentium.  The  merchant  has  not  in- 
aptly been  called  "the  father  of  the  Civil  Code  of  Germany,"  influence  of 
because,   as  commercial  intercourse  recognizes  no  national  commerce  m 

'.  1-1  unifying  law. 

boundaries,  he  was  naturally  the  first  to  desire  a  homogeneous 
system  of  civil  rights.  It  was  the  mercantile  element  in  the 
German  cities  that  eventually  crushed  the  spirit  of  feudalism  ; 
it  was  the  mercantile  element  that  opened  the  way  for  an  Im- 
perial Code  by  first  creating  a  uniform  system  of  commercial 
law.  The  first  modern  effort  to  give  unity  to  law  in  Germany 
was  made,  as  a  prelude  to  the  movement  for  national  unity,  by 
the  German  Bills  of  Exchange  Law  (Wechselordnung,  1848- 
50) ,  while  a  general  Commercial  Code  (Gemeines  Handelsgesetz- 

1  In  1904,  the  bench  and  bar  of  societe  cT etudes  legislatives.  A.  Rous- 
France    celebrated    the    centennial  seau,  Paris,  1904,  And  also  the  ex- 
anniversary  of   its   adoption   with  cellent  article  suggested  by  the  event 
ceremonies    whose    literary    fruits  entitled  "The  Code  Napoleon,"  in 
have  been  gathered  in  two  ponder-  American    Law    Review,   Nov.  and 
ous  volumes,   made    up  of  papers  Dec.,  1906,  by  N.  M.  Rose, 
prepared  by  representatives  of  the  2  See  his  article  on  the  general 
many  countries  that  have  adopted  theory  and  purpose  of  the  code  in 
it.   See  Le  Code  Civile,  1804-1904;  the  Forum,  October,  1899. 
Livre  du  centennaire.  Public  par  la 


468 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Our  effort  to 
establish  uni- 
form commer- 
cial system. 


A  merchant 
the  father  of 
the  Constitu- 
tion. 


buck),  enacted  in  the  various  states  between  1862  and  1866, 
was  reenacted  for  the  new  empire  in  I87I.1 

In  juxtaposition  with  the  foregoing  statement  as  to  the  in- 
fluence of  commerce  upon  the  unity  of  law  in  Germany  should 
be  set  the  fact  that  the  first  step  toward  the  making  of  the  ex- 
isting Constitution  of  the  United  States  was  taken  in  January, 
1786,  when  Virginia  issued  the  call  for  a  convention  of  states 
to  meet  at  Annapolis,  in  order  to  consider  the  establishment  of 
a  uniform  commercial  system.  When  Maryland  prompted  Vir- 
ginia to  take  that  step  by  proposing  that  commissioners  from 
all  the  states  should  be  invited  to  meet  and  regulate  the  re- 
strictions on  commerce  for  the  whole,  Madison  saw  at  once  the 
advantage  of  "a  politico-commercial  commission"  for  the  con- 
tinent.2 The  outcome  of  the  meeting  at  Annapolis  was  the  call 
for  a  convention  "to  meet  at  Philadelphia  on  the  second  Mon- 
day of  the  next  May  to  consider  the  situation  of  the  United 
States."  All  the  world  now  knows  that  three  years  and  a  half 
prior  to  the  meeting  of  the  Annapolis  Convention,  Pelatiah 
Webster,  a  retired  merchant  of  Philadelphia,  who  was  the  great- 
est political  economist  of  that  day  in  this  country,  put  forth, 
on  February  16,  1783,  as  his  invention,  the  entirely  new  plan 
of  federal  government  embodied  in  the  existing  Constitution 
of  the  United  States.  Just  as  it  may  be  said  that  the  merchant 
was  "the  father  of  the  Civil  Code  of  Germany,"  so  it  may  be 
said  that  a  merchant  was  "the  father  of  the  Constitution  of 
the  United  States."  In  the  plan  of  the  great  architect  large 
space  is  given  to  the  influence  of  the  merchant.  "I  therefore 
humbly  propose,"  he  said,  "if  the  merchants  in  the  several 
states  are  disposed  to  send  delegates  from  their  body,  to  meet 
and  attend  the  sitting  of  Congress,  that  they  shall  be  permitted 
to  form  a  chamber  of  commerce,  and  their  advice  to  Congress 
be  demanded  and  admitted  concerning  all  bills  before  Con- 
gress, as  far  as  the  same  may  affect  the  trade  of  the  states.  ...  It 
will  give  dignity,  uniformity,  and  safety  to  our  trade."  While 
Pelatiah  Webster's  dream  of  a  uniform  system  of  federal  taxa- 
tion, enforceable  by  a  self-sustaining  system  of  federal  govern- 
ment, has  been  fully  realized,  his  dream  of  a  uniform  commercial 
system,  resting  on  the  "uniformity"  of  law,  has  been  thwarted 

1  See  above,rp.  25. 

2  Cf.  Bancroft,  Hist,  of  the  Const.,  i,  252. 


XIV.]  THE  OUTCOME  OF  OUR  GROWTH  469 

by  the  existence  of  independent  sovereignties  which  stand  to 
each  other,  so  far  as  their  domestic  codes  are  concerned,  almost 
like  foreign  nations.  Out  of  that  condition  of  things  has  arisen 
a ' '  conflict  of  laws ' '  whose  embarrassments  are  endless.  Against  "  Conflict 
those  embarrassments  the  commercial  elements  of  this  coun-  of  Iaws>" 
try  are  now  struggling  as  never  before,  because,  as  the  com- 
mercial relations  of  the  states  become  more  intimate  and  more 
complex,  the  disadvantages  incident  to  the  conflict  deepen  in 
intensity.  Why  such  embarrassments  are  not  actually  greater 
than  they  are  it  is  hard  to  understand  when  we  consider  the 
number  of  law-making  bodies  and  the  number  of  supreme  tri- 
bunals in  active  operation.  No  country  in  the  world  has  ever 
been  inundated  by  such  floods  of  law,  statutory  and  judge- 
made,  as  are  now  streaming  from  the  forty-six  state  sovereign-  Forty-seven 
ties  and  the  one  federal  sovereignty  by  which  we  are  governed. 
In  comparison  the  books  containing  the  statutory  and  judge- 
made  law  of  England  are  a  mere  handful.  The  late  Judge 
W.  W.  Howe1  called  attention  not  long  ago  to  the  fact  that, 
comparing  the  size  of  the  pages,  the  forty-sixth  volume  of 
Louisiana  Annual  Reports  for  the  year  1894  contains  as 
much  matter  as  the  entire  Digest  or  Pandect,  into  which 
was  condensed  the  judge-made  law  evolved  at  Rome  during 
a  thousand  years. 

As  the  states  must  abide  so  long  as  the  Union  abides,  the  inconven- 
nation  must  learn  as  it  grows  older  to  draw  all  possible  benefits  j^^rapS635* 
from  the  two  systems  of  law,  while  minimizing  the  inconven-  intercommun- 
iences  and  conflicts  necessarily  arising  out  of  the  existence  of  ication- 
two  systems.  Such  inconveniences  and  conflicts  have  greatly 
multiplied  recently  as  rapid  intercommunication  has  drawn 
the  states  nearer  together  than  ever  before,  and  as  the  start- 
ling growth  of  governmental  power,  state  and  federal,  has  in- 
truded itself,  as  never  before,  into  the  private  life  of  the  citizen, 
following  as  it  does  the  apothecary  to  his  laboratory,  the  dairy- 
man to  his  churn,  the  butcher  to  his  shambles,  and  the  baker 
to  his  oven.  The  widening  circle  of  governmental  power  has 
intensified  the  difficulties  affecting  both  commerce  and  labor 
first,  by  reason  of  conflicting  state  codes;  second,  by  reason  of 
the  lack  of  uniformity  between  state  and  federal  laws  touching 
the  same  subject-matter.  The  result  has  been  an  outcry  from 
1  Studies  in  the  Civil  Law,  67. 


470 

Four  great 
agencies  at 
work. 

American  Bar 
Association 
and  its  yoke- 
fellow. 


THE  AMERICAN  CONSTITUTION 


[Cn. 


Results 
already 
attained. 


National  Civic 
Federation. 


many  interests,  which,  during  the  last  twenty  years,  has  set  in 
motion  four  great  agencies  now  working  together  with  perfect 
harmony  and  efficiency  in  the  effort  to  unify  American  law. 
First  among  those  agencies  stands  the  American  Bar  Associa- 
tion, which  for  years  has  been  doing  its  utmost  to  bring  about 
unity  in  state  legislation  upon  subjects  of  common  interest, 
through  its  standing  committee  upon  "Uniform  State  Laws." 
In  order  to  render  that  branch  of  its  work  more  effective,  an 
affiliated  association  was  created  in  1890  by  an  Act  of  the  New 
York  Legislature  authorizing  the  appointment  of ' '  Commission- 
ers for  the  promotion  of  uniformity  of  legislation  in  the  United 
States."  These  affiliated  associations,  yoked  together  by  their 
by-laws,  have  accomplished  great  things  already.  Nineteen 
national  conferences  of  commissioners  from  different  states  and 
territories  have  been  held,  there  being  now  forty-eight  states 
and  territories,  including  the  District  of  Columbia  and  the 
Philippine  Islands,  represented  in  the  Conference.  The  Uni- 
form Negotiable  Instruments  Act  (approved  by  the  Conference 
in  1896)  has  been  adopted  in  thirty-eight  states  and  territories. 
The  Uniform  Warehouse  Receipts  Act  (approved  by  the  Confer- 
ence in  1906)  has  been  adopted  in  eighteen  states.  The  Uni- 
form Sales  Act  (approved  by  the  Conference  in  1906)  has  been 
adopted  in  six  states.  The  Uniform  Stock  Transfer  Act  (ap- 
proved by  the  Conference  in  1909)  is  now  being  presented  to 
the  several  state  legislatures.  The  Uniform  Bills  of  Lading  Act 
was  adopted  at  the  Conference  in  1909,  after  the  most  careful 
criticism  by  the  large  interests  affected.  The  Conference  still 
has  under  consideration  the  draft  of  a  Uniform  Partnership 
Act,  and  also  the  draft  of  a  Uniform  Incorporation  Act.  All  of 
these  acts  have  been  prepared  in  response  to  the  pressing  need 
of  the  business  world  to  remove  as  far  as  possible  the  uncer- 
tainty and  vexation  arising  from  the  widely  differing  laws  of 
the  states  and  territories  on  matters  of  daily  importance. 

While  the  work  of  unifying  state  legislation  was  thus  ad- 
vancing under  the  direction  of  the  American  Bar  Association 
and  its  worthy  yoke-fellow,  a  new  force  appeared  in  the  corpor- 
ate person  of  the  National  Civic  Federation,  which  recently 
held  a  conference  at  Washington,  "after  consultation  with 
other  bodies  interested  in  promoting  uniform  legislation  by 
the  states  of  the  Union."  The  horizon  has  been  widened  by  the 


XIV.]  THE  OUTCOME  OP  OUR  GROWTH  471 

work  of  the  Federation,  whose  programme  has  swept  into  the 
struggle  for  unity  in  state  laws  such  subjects  as  public  account- 
ing, anti-trust  and  railway  regulation,  state  banking,  life  and 
fire  insurance,  fire  marshal  laws,  pure  food  laws,  labor  laws, 
commercial  laws,  vital  statistics,  marriage  and  divorce,  laws 
relating  to  women  and  the  custody  of  their  children,  and  laws 
regulating  the  public  health,  and  good  roads. 

That  irresistible  trend  toward  unity  in  state  laws,  which  is 
widening  and  deepening  every  day  under  the  impulse  of  com- 
mercial necessity,  has  somewhat  suddenly  brought  into  being 
still  another  agency  destined  to  be  more  potent,  perhaps,  than 
all  others  in  working  out  the  final  result.  The  creation  of 
the  annual  conference  of  the  chief  executives  of  all  the  states, 
known  already  as  "The  House  of  Governors,"  was  little  less  "The  House 
than  an  inspiration.  This  fourth  institution  is  destined  to  o£  Governors." 
act  as  a  hyphen  or  buckle  to  unite  the  masses  struggling  for 
the  unification  of  American  law  with  the  state  legislatures 
through  whose  agency  it  must  be  brought  about,  if  at  all. 
Each  annual  conference  will  put  each  governor  abreast  of  the 
movement;  after  each  meeting  he  will  be  ready  to  explain  to 
the  legislature  of  his  state  how  much  has  been  accomplished 
and  how  much  remains  to  be  done  with  its  cooperation. 

Thus  it  appears  that  the  machinery  is  all  complete,  and  the  Need  fora  ' 


public  mind  thoroughly  aroused  by  the  pressure  of  a  necessity  *yv^  code 
that  grows  more  urgent  everyday.  All  that  is  lacking  is  a  more 
comprehensive  and  scientific  understanding  of  the  end  to  be 
finally  attained.  The  time  has  arrived  when  the  American 
people  must  awake  to  the  fact  that  the  movement  now  dealing 
with  the  unification  of  state  law  piecemeal  must  undertake  the 
construction  of  a  comprehensive  and  typical  code  of  state  law, 
embracing  all  the  subjects  of  legislation  common  to  all,  which 
each  state  may  enact  as  its  own  with  as  little  change  as  possible. 
It  is  manifest  that  without  a  common  standard  or  ideal  to  which 
all  may  approach,  the  unification  of  American  state  law  is  im- 
possible. Nothing  could  be  more  fortunate  than  the  gradual 
and  almost  unconscious  approach  which  has  so  far  been  made 
toward  such  an  ideal.  The  fact  that  thirty-eight  states  and  ter- 
ritories have  been  able  to  adopt  a  Uniform  Negotiable  Instru- 
ments Act,  the  fact  that  eighteen  states  and  territories  have 
been  able  to  adopt  a  Uniform  Warehouse  Receipts  Act,  puts  the 


472 


THE  AMERICAN  CONSTITUTION 


[CH. 


How  it  should 
be  constructed. 


How  it  may 
be  adopted. 


Need  of  a 
Federal  Code 
Commission. 


fact  beyond  question  that  all  may  be  induced  gradually  to 
adopt  a  scientifically  constructed  state  code  embracing  every 
other  subject  in  which  they  have  a  common  interest.   Under 
the  auspices  of  the  four  great  agencies  now  at  work  should  be 
constructed  such  a  code  of  state  law,  substantive  and  adjective, 
condensing  within  a  reasonably  narrow  compass  the  fruits  of 
our  entire  legal  development.  Such  fruits  should  be  so  formu- 
lated as  to  embrace  all  the  leading  subjects  in  which  the  states 
have  a  common  interest.  The  experience  we  have  had  already 
in  the  making  of  state  codes  should  greatly  facilitate  the  work, 
which  should  be  one  rather  of  selection  than  creation.   "The 
House  of  Governors"  can  easily  arrange  an  equitable  scheme 
by  which  all  the  states  may  contribute,  upon  the  basis  of  popu- 
lation, to  the  expense  of  maintaining  an  interstate  code  com- 
mission to  consist  of  jurists  of  the  highest  order.  As  the  Code 
Napoleon  was  completed  from  the  first  draft  to  the  finish  in 
four  years,  certainly  that  time  should  suffice  for  an  undertak- 
ing that  is  nothing  more  than  an  enlargement  of  the  work  in 
which  the  "Commissioners  for  the  promotion  of  uniformity 
of  legislation  in  the  United  States"  are  now  engaged.  There 
is  no  reason  why  an  interstate  code  commission  should  not  be 
developed,  in  whole  or  in  part,  out  of  the  ranks  of  that  worthy 
and  successful  organization.  After  a  typical  code  of  state  law 
has  been  perfected  by  such  a  code  commission,  the  state  legis- 
latures can  be  induced  to  adopt  it  under  the  pressure  of  public 
opinion  by  the  normal  process  through  which  state  codes  are 
now  adopted  or  revised  at  stated  intervals.  We  all  know  how 
willing  the  younger  states  are  to  reproduce,  in  whole  or  in  part, 
the  codes  of  a  few  of  the  older  states.   If  a  common  standard 
could  once  be  set  up,  that  inclination  would  become  universal. 
Before  an  Interstate  Code  Commission  can  be  organized, 
Congress  should  begin  to  wipe  out  the  confusion  now  existing 
in  our  federal  statutes,  little  less  than  a  national  disgrace,  by 
the  creation  of  a  Federal  Code  Commission,  to  be  charged  with 
the  duty  of  making  a  really  scientific  code  of  federal  law,  sub- 
stantive and  adjective.  The  proposal  recently  made  by  the 
President  for  a  commission  to  prepare  a  code  of  adjective  law 
or  procedure  is  too  narrow;  the  work  of  such  a  commission 
should  embrace  also  the  substantive  law,  which  is  in  sore  need 
of  careful  revision.  The  two  entirely  independent  commis- 


XIV.]  THE  OUTCOME  OF  OUR  GROWTH  473 

sions  should  promote  the  common  object  by  working  side  by 
side  at  Washington.  In  that  way  they  would  be  able  to  devise 
harmonious  regulations  as  to  subjects  upon  which  both  state 
and  nation  must  legislate,  defining  more  clearly  at  the  same 
time  where  state  power  should  end  and  where  federal  power 
should  begin.  One  half  of  the  conflicts  that  now  arise  are  caused 
by  the  absence  of  such  legislation.  Above  all,  two  such  bodies, 
working  independently  and  yet  in  concert,  should  be  able  to  Need  of 
formulate  a  simple  system  of  legal  procedure,  embracing  the  J 
enforcement  of  both  legal  and  equitable  rights,  for  the  com-  procedure, 
mon  use  of  all  tribunals,  state  and  federal.  That  part  of  the 
work  alone  would  save  millions  annually  to  the  nation  in  the 
expenses  and  delays  of  litigation.  Rich  as  we  are,  we  cannot 
afford  to  prolong  existing  systems,  reeking  with  unnecessary 
and  oppressive  expenditures,  apart  from  the  constant  miscar- 
riages of  justice. 

This  far-reaching  question  has  been  thus  presented  in  con- 
clusion, because  it  is  an  outcome  of  our  growth  which  de- 
mands for  its  solution  the  highest  skill  of  the  jurist  and  legis- 
lator. That  solution  can  no  longer  be  put  off,  —  the  insistence 
of  its  advocates  is  backed  by  the  outcry  of  pressing  commer- 
cial necessity.   Certainly  nothing  could  do  more  to  strengthen  National  life 
our  new  national  life  than  the  unification  of  American  law  strengthened 
through  voluntary  state  action.  Nothing  could  do  more  to  through  uni- 
defend  us  against  the  dangers  of  sectionalism,  referred  to  by  fication  of  law- 
Washington  in  his  Farewell  Address  as  attending  "geograph- 
ical discriminations,  —  Northern  and  Southern,  Atlantic  and 
Western,  —  whence  designing  men  may  endeavor  to  excite  a 
belief  that  there  is  a  real  difference  of  local  interests  and  views. 
One  of  the  expedients  of  party  to  acquire  influence  within 
particular  districts  is  to  misrepresent  the  opinions  and  aims  of 
other  districts.  You  cannot  shield  yourselves  too  much  against 
the  jealousies  and  heartburnings  which   spring  from   these 
misrepresentations;  they  tend  to  render  alien  to  each  other 
those  who  ought  to  be  bound  together  by  fraternal  affection." 


APPENDIX 

SELECT    DOCUMENTS    ILLUSTRATIVE   OF 
AMERICAN  CONSTITUTIONAL  HISTORY 


APPENDIX 


I 

ARTICLES  OF  CONFEDERATION  OF  THE  UNITED 
COLONIES  OF  NEW  ENGLAND,   1643* 

Betweene  the  plantations  vnder  the  Gouernment  of  the  Massachusetts,     APPENDIX 
the  Plantacons  vnder  the  Gouernment  of  New  Plymouth,  the  I 

Plantacons  vnder  the  Gouernment  of  Connectacutt,  and  the 
Gouernment  of  New  Haven  with  the  Plantacons  in  combinacon 
therewith 

WHEREAS  wee  all  came  into  these  parts  of  America  with  one  and  the 
same  end  and  ayme,  namely,  to  advaunce  the  kingdome  of  our  Lord 
Jesus  Christ,  and  to  enjoy  the  liberties  of  the  Gospell  in  puritie  with 
peace.  And  whereas  in  our  settleinge  (by  a  wise  Providence  of  God)  we 
are  further  dispersed  vpon  the  Sea  Coasts  and  Riuers  then  was  at  first 
intended,  so  that  we  cannot  according  to  our  desire,  with  convenience 
communicate  in  one  Gouernment  and  Jurisdiccon.  And  whereas  we 
live  encompassed  with  people  of  seuerall  Nations  and  strang  languages 
which  heareafter  may  proue  injurious  to  vs  or  our  posteritie.  And  for- 
asmuch as  the  Natives  have  formerly  committed  sondry  insolences  and 
outrages  vpon  seueral  Plantacons  of  the  English  and  have  of  late  com- 
bined themselues  against  vs.  And  seing  by  reason  of  those  sad  Dis- 
traccons  in  England,  which  they  have  heard  of,  and  by  which  they  know 
we  are  hindred  from  that  humble  way  of  seekinge  advise  or  reapeing 
those  comfortable  fruits  of  protection  which  at  other  tymes  we  might 
well  expecte.  Wee  therefore  doe  conceiue  it  our  bounden  Dutye  without 
delay  to  enter  into  a  present  consotiation  amongst  our  selues  for  mutual 
help  and  strength  in  all  our  future  concernements:  That  as  in  Nation 
and  Religion,  so  in  other  Respects  we  bee  and  continue  one  according 
to  the  tenor  and  true  meaninge  of  the  ensuing  Articles:  Wherefore  it  is 
fully  agreed  and  concluded  by  and  betweene  the  parties  or  Jurisdiccons 
aboue  named,  and  they  joyntly  and  seuerally  doe  by  these  presents 
agreed  and  concluded  that  they  all  bee,  and  henceforth  bee  called  by 
the  Name  of  the  United  Colonies  of  New-England. 

II.  The  said  United  Colonies,  for  themselues  and  their  posterities,  do 
joyntly  and  seuerally,  hereby  enter  into  a  firme  and  perpetuall  league 
of  friendship  and  amytie,  for  offence  and  defence,  mutuall  advise  and 

1  A  title  taken  directly  from  the  Seven  United  Provinces  of  the  Nether- 
lands. 


478  APPENDIX 

APPENDIX     succour,  vpon  all  just  occations,  both  for  preserueing  and  propagateing 
I  the  truth  and  liberties  of  the  Gospel,  and  for  their  owne  mutuall  safety 

and  wellfare. 

III.  It  is  futher  agreed  That  the  Plantacons  which  at  present  are  or 
hereafter  shalbe  settled  within  the  limmetts  of  the  Massachusetts, 
shalbe  forever  vnder  the  Massachusetts,  and  shall  have  peculiar  Juris- 
diccon  among  themselues  in  all  cases  as  an  entire  Body,  and  that  Ply- 
mouth, Connecktacutt,  and  New  Haven  shall  eich  of  them  haue  like 
peculier  Jurisdiccon  and  Gouernment  within  their  limmetts  and  in 
referrence  to  the  Plantacons  which  already  are  settled  or  shall  hereafter 
be  erected  or  shall  settle  within  their  limmetts  respectiuely ;  prouided 
that  no  other  Jurisdiccon  shall  hereafter  be  taken  in  as  a  distinct  head 
or  member  of  this  Confederacon,  nor  shall  any  other  Plantacon  or  Juris- 
diccon in  present  being  and  not  already  in  combynacon  or  vnder  the 
Jurisdiccon  of  any  of  these  Confederats  be  received  by  any  of  them,  nor 
shall  any  two  of  the  Confederats  joyne  in  one  Jurisdiccon  without  con- 
sent of  the  rest,  which  consent  to  be  interpreted  as  is  expressed  in  the 
sixth  Article  ensuinge. 

IV.  It  is  by  these  Confederats  agreed  that  the  charge  of  all  just  warrs, 
whether  offensiue  or  defensiue,  upon  what  part  or  member  of  this  Con- 
federaccon  soever  they  fall,  shall  both  in  men  and  provisions,  and  all 
other  Disbursements,  be  borne  by  all  the  parts  of  this  Confederacon,  in 
different  proporcons  according  to  their  different  abilitie,  in  manner  fol- 
lowing, namely,  that  the  Commissioners  for  eich  Jurisdiccon  from  tyme 
to  tyme,  as  there  shalbe  occation,  bring  a  true  account  and  number  of 
all  the  males  in  every  Plantacon,  or  any  way  belonging  to,  or  under  their 
seuerall  Jurisdiccons,  of  what  quality  or  condicion  soeuer  they  bee,  from 
sixteene  yeares  old  to  threescore,  being  Inhabitants  there.   And  That 
according  to  the  different  numbers  which  from  tyme  to  tyme  shalbe 
found  in  eich  Jurisdiccon,  upon  a  true  and  just  account,  the  service  of 
men  and  all  charges  of  the  warr  be  borne  by  the  Poll :  Eich  Jurisdiccon, 
or  Plantacon,  being  left  to  their  owne  just  course  and  custome  of  rating 
themselues  and  people  according  to  their  different  estates,  with  due 
respects  to  their  qualites  and  exemptions  among  themselues,  though  the 
Confederacon  take  no  notice  of  any  such  priviledg:  And  that  according 
to  their  differrent  charge  of  eich  Jurisdiccon  and  Plantacon,  the  whole 
advantage  of  the  warr  (if  it  please  God  to  bless  their  Endeavours) 
whether  it  be  in  lands,  goods  or  persons,  shall  be  proportionably  deuided 
among  the  said  Confederats. 

V.  It  is  further  agreed  That  if  any  of  these  Jurisdiccons,  or  any  Plan- 
tacons vnder  it,  or  in  any  combynacon  with  them  be  envaded  by  any 
enemie  whomsoeuer,  vpon  notice  and  request  of  any  three  majestrats  of 
that  Jurisdiccon  so  invaded,  the  rest  of  the  Confederates,  without  any 
further  meeting  or  expostulacon,  shall  forthwith  send  ayde  to  the  Con- 
federate in  danger,  but  in  different  proporcons;  namely,  the  Massachu- 
setts an  hundred  men  sufficiently  armed  and  provided  for  such  a  ser- 
vice and  jorney,  and  eich  of  the  rest  fourty-fiue  so  armed  and  provided, 
or  any  lesse  number,  if  lesse  be  required,  according  to  this  proporcon. 


APPENDIX  479 

But  if  such  Confederate  in  danger  may  be  supplyed  by  their  next  Con-     APPENDIX 
federate,  not  exceeding  the  number  hereby  agreed,  they  may  craue  help  I 

there,  and  seeke  no  further  for  the  present.  The  charge  to  be  borne  as  in 
this  Article  is  exprest:  And,  at  the  returne,  to  be  victualled  and  sup- 
plyed with  poder  and  shott  for  their  journey  (if  there  be  neede)  by  that 
Jurisdiccon  which  employed  or  sent  for  them:  But  none  of  the  Jurisdic- 
cons  to  exceed  these  numbers  till  by  a  meeting  of  the  Commissioners  for 
this  Confederacon  a  greater  ayd  appeare  necessary.  And  this  proporcon 
to  continue,  till  upon  knowledge  of  greater  numbers  in  eich  Jurisdiccon 
which  shalbe  brought  to  the  next  meeting  some  other  proporcon  be 
ordered.  But  in  any  such  case  of  sending  men  for  present  ayd  whether 
before  or  after  such  order  or  alteracon,  it  is  agreed  that  at  the  meeting 
of  the  Commissioners  for  this  Confederacon,  the  cause  of  such  warr  or 
invasion  be  duly  considered :  And  if  it  appeare  that  the  fault  lay  in  the 
parties  so  invaded,  that  then  that  Jurisdiccon  or  Plantacon  make  just 
Satisfaccon,  both  to  the  Invaders  whom  they  have  injured,  and  beare 
all  the  charges  of  the  warr  themselves  without  requireing  any  allowance 
from  the  rest  of  the  Confederats  towards  the  same.  And  further,  that 
if  any  Jurisdiccon  see  any  danger  of  any  Invasion  approaching,  and 
there  be  tyme  for  a  meeting,  that  in  such  case  three  majestrats  of  that 
Jurisdiccon  may  summon  a  meeting  at  such  convenyent  place  as  them- 
selues  shall  think  meete,  to  consider  and  provide  against  the  threatned 
danger,  Provided  when  they  are  met  they  may  remoue  to  what  place 
they  please,  Onely  whilst  any  of  these  foure  Confederats  have  but  three 
majestrats  in  their  Jurisdiccon,  their  request  or  summons  from  any  two 
of  them  shalbe  accounted  of  equall  force  with  the  three  mentoned  in 
both  the  clauses  of  this  Article,  till  there  be  an  increase  of  majestrats 
there. 

VI.  It  is  also  agreed  that  for  the  mannaging  and  concluding  of  all 
affairs  proper  and  concerneing  the  whole  Confederacon,  two  Commis- 
sioners shalbe  chosen  by  and  out  of  eich  of  these  foure  Jurisdiccons, 
namely,  two  for  the  Massachusetts,  two  for  Plymouth,  two  for  Connec- 
tacutt  and  two  for  New  Haven ;  being  all  in  Church  fellowship  with  us, 
which  shall  bring  full  power  from  their  seuerall  generall  Courts  respec- 
tively to  heare,  examine,  weigh  and  determine  all  affaires  of  our  warr 
or  peace,  leagues,  ayds,  charges  and  numbers  of  men  for  warr,  divission 
of  spoyles  and  whatsoever  is  gotten  by  conquest,  receiueing  of  more 
Confederats  for  plantacons  into  combinacon  with  any  of  the  Confed- 
erates, and  all  thinges  of  like  nature  which  are  the  proper  concomitants 
or  consequence  of  such  a  Confederacon,  for  amytie,  offence  and  defence, 
not  intermeddleing  with  the  gouernment  of  any  of  the  Jurisdiccons 
which  by  the  third  Article  is  preserued  entirely  to  themselves.  But  if 
these  eight  Commissioners,  when  they  meete,  shall  not  all  agree,  yet  it  is 
concluded  that  any  six  of  the  eight  agreeing  shall  have  power  to  settle 
and  determine  the  business  in  question :  But  if  six  do  not  agree,  that  then 
such  proposicons  with  their  reasons,  so  farr  as  they  have  beene  debated, 
be  sent  and  referred  to  the  foure  generall  Courts,  vizt.  the  Massachu- 
setts, Plymouth,  Connectacutt,  and  New  Haven:  And  if  at  all  the  said 


480  APPENDIX 

APPENDIX     Generall  Courts  the  businesse  so  referred  be  concluded,  then  to  bee 
I  prosecuted  by  the  Confederates  and  all  their  members.    It  is  further 

agreed  that  these  eight  Commissioners  shall  meete  once  every  yeare, 
besides  extraordinary  meetings  (according  to  the  fift  Article)  to  con- 
sider, treate  and  conclude  of  all  affaires  belonging  to  this  Confederacon, 
which  meeting  shall  ever  be  the  first  Thursday  in  September.  And  that 
the  next  meeting  after  the  date  of  these  presents,  which  shalbe  ac- 
counted the  second  meeting,  shalbe  at  Bostone  in  the  Massachusetts, 
the  third  at  Hartford,  the  fourth  at  New  Haven,  the  fift  at  Plymouth, 
the  sixt  and  seaventh  at  Bostone.  And  then  Hartford,  New  Haven  and 
Plymouth,  and  so  in  course  successiuely,  if  in  the  meane  tyme  some 
middle  place  be  not  found  out  and  agreed  on  which  may  be  commodious 
for  all  the  jurisdiccons. 

VII.  It  is  further  agreed  that  at  eich  meeting  of  these  eight  Commis- 
sioners, whether  ordinary  or  extraordinary,  they,  or  six  of  them  agree- 
ing, as  before,  may  choose  their  President  out  of  themselues,  whose 
office  and  worke  shalbe  to  take  care  and  direct  for  order  and  a  comely 
carrying  on  of  all  proceedings  in  the  present  meeting.    But  he  shalbe 
invested  with  no  such  power  or  respect  as  by  which  he  shall  hinder  the 
propounding  or  progresse  of  any  businesse,  or  any  way  cast  the  Scales, 
otherwise  then  in  the  precedent  Article  is  agreed. 

VIII.  It  is  also  agreed  that  the  Commissioners  for  this  Confederacon 
hereafter  at  their  meetings,  whether  ordinary  or  extraordinary,  as  they 
may  have  commission  or  opertunitie,  do  endeavoure  to  frame  and 
establish  agreements  and  orders  in  generall  cases  of  a  civill  nature 
wherein  all  the  plantacons  are  interested  for  preserving  peace  among 
themselves,  and  preventing  as  much  as  may  bee  all  occations  of  warr  or 
difference  with  others,  as  about  the  free  and  speedy  passage  of  Justice 
in  every  Jurisdiccon,  to  all  the  Confederats  equally  as  their  owne, 
receiving  those  that  remoue  from  one  plantacon  to  another  without  due 
certefycats;  how  all  the  Jurisdiccons  may  carry  it  towards  the  Indians, 
that  they  neither  grow  insolent  nor  be  injured  without  due  satisfaccion, 
lest  warr  break  in  vpon  the  Confederates  through  such  miscarryage.  It 
is  also  agreed  that  if  any  servant  runn  away  from  his  master  into  any 
other  of  these  confederated  Jurisdiccons,  That  in  such  Case,  vpon  the 
Certyficate  of  one  Majistrate  in  the  Jurisdiccon  out  of  which  the  said 
servant  fled,  or  upon  other  due  proofe,  the  said  servant  shalbe  deliuered 
either  to  his  Master  or  any  other  that  pursues  and  brings  such  Certifi- 
cate or  proofe.  And  that  vpon  the  escape  of  any  prisoner  whatsoever  or 
fugitiue  for  any  criminal  cause,  whether  breaking  prison  or  getting  from 
the  officer  or  otherwise  escaping,  upon  the  certificate  of  two  Majistrats 
of  the  Jurisdiccon  out  of  which  the  escape  is  made  that  he  was  a  prisoner 
or  such  an  offender  at  the  tyme  of  the  escape.  The  Majestrates  or  some 
of  them  of  that  Jurisdiccon  where  for  the  present  the  said  prisoner  or 
fugitive  abideth  shall  forthwith  graunt  such  a  warrant  as  the  case  will 
beare  for  the  apprehending  of  any  such  person,  and  the  delivery  of  him 
into  the  hands  of  the  officer  or  other  person  that  pursues  him.  And  if 
there  be  help  required  for  the  safe  returneing  of  any  such  offender,  then 


APPENDIX  481 

it  shalbe  graunted  to  him  that  craves  the  same,  he  paying  the  charges     APPENDIX 
thereof.  I 

IX.  And  for  that  the  justest  warrs  may  be  of  dangerous  consequence, 
espetially  to  the  smaler  plantacons  in  these  vnited  Colonies,  It  is  agreed 
that  neither  the  Massachusetts,  Plymouth,  Connectacutt  nor  New- 
Haven,  nor  any  of  the  members  of  any  of  them  shall  at  any  tyme  here- 
after begin,  undertake,  or  engage  themselues  or  this  Confederacon,  or 
any  part  thereof  in  any  warr  whatsoever  (sudden  exegents  with  the 
necessary  consequents  thereof  excepted,  which  are  also  to  be  moderated 
as  much  as  the  case  will  permit)  without  the  consent  and  agreement  of 
the  forenamed  eight  Commissioners,  or  at  least  six  of  them,  as  in  the 
sixt  Article  is  provided :  And  that  no  charge  be  required  of  any  of  the 
Confederats  in  case  of  a  defensiue  warr  till  the  said  Commissioners  haue 
mett  and  approued  the  justice  of  the  warr,  and  have  agreed  vpon  the 
sum  of  money  to  be  levyed,  which  sum  is  then  to  be  payd  by  the  sev- 
erall  Confederates  in  proporcon  according  to  the  fourth  Article. 

X.  That  in  extraordinary  occations  when  meetings  are  summoned 
by  three  Majistrats  of  any  Jurisdiccon,  or  two  as  in  the  fift  Article,  If 
any  of  the  Commissioners  come  not,  due  warneing  being  given  or  sent, 
It  is  agreed  that  foure  of  the  Commissioners  shall  have  power  to  direct 
a  warr  which  cannot  be  delayed  and  to  send  for  due  proporcons  of  men 
out  of  eich  Jurisdiccon,  as  well  as  six  might  doe  if  all  mett ;  but  not  less 
than  six  shall  determine  the  justice  of  the  warr  or  allow  the  demaunde 
of  bills  of  charges  or  cause  any  levies  to  be  made  for  the  same. 

XL  It  is  further  agreed  that  if  any  of  the  Confederates  shall  here- 
after break  any  of  these  present  Articles,  or  be  any  other  wayes  injurious 
to  any  one  of  thother  Jurisdiccons,  such  breach  of  Agreement,  or  injurie, 
shalbe  duly  considered  and  ordered  by  the  Commissioners  for  thother 
Jurisdiccons,  that  both  peace  and  this  present  Confederacon  may  be 
entirely  preserued  without  violation. 

XII.  Lastly,  this  perpetuall  Confederacon  and  the  several  Articles 
and  Agreements  thereof  being  read  and  seriously  considered,  both  by 
the  Generall  Court  for  the  Massachusetts,  and  by  the  Commissioners 
for  Plymouth,  Connectacutt  and  New  Haven,  were  fully  allowed  and 
confirmed  by  three  of  the  forenamed  Confederates,  namely,  the  Massa- 
chusetts, Connectacutt  and  New-Haven,  Onely  the  Commissioners  for 
Plymouth,  having  no  Commission  to  conclude,  desired  respite  till  they 
might  advise  with  their  Generall  Court,  wherevpon  it  was  agreed  and 
concluded  by  the  said  court  of  the  Massachusetts,  and  the  Commission- 
ers for  the  other  two  Confederates,  That  if  Plymouth  Consent,  then  the 
whole  treaty  as  it  stands  in  these  present  articles  is  and  shall  continue 
firme  and  stable  without  alteracon:  But  if  Plymouth  come  not  in,  yet 
the  other  three  Confederates  doe  by  these  presents  confirme  the  whole 
Confederacon  and  all  the  Articles  thereof,  onely,  in  September  next, 
when  the  second  meeting  of  the  Commissioners  is  to  be  at  Bostone,  new 
consideracon  may  be  taken  of  the  sixt  Article,  which  concernes  number 
of  Commissioners  for  meeting  and  concluding  the  affaires  of  this  Con- 
federacon to  the  satisfaccon  of  the  court  of  the  Massachusetts,  and 


482  APPENDIX 

APPENDIX     the  Commissioners  for  thother  two  Confederates,  but  the  rest  to  stand 
I  vnquestioned. 

In  testymony  whereof,  the  Generall  Court  of  the  Massachusetts  by 
their  Secretary,  and  the  Commissioners  for  Connectacutt  and  New- 
Haven  haue  subscribed  these  presente  articles,  this  xixth  of  the  third 
month,  commonly  called  May,  Anno  Domini,  1643. 

At  a  Meeting  of  the  Commissioners  for  the  Confederacon,  held  at 
Boston,  the  Seaventh  of  September.  It  appeareing  that  the  Generall 
Court  of  New  Plymouth,  and  the  severall  Towneships  thereof  have 
read,  considered  and  approoued  these  articles  of  Confederacon,  as 
appeareth  by  Comission  from  their  Generall  Court  beareing  Date  the 
xxixth  of  August,  1643,  to  Mr.  Edward  Winslowe  and  Mr.  Will  Collyer, 
to  ratifye  and  confirme  the  same  on  their  behalf,  wee  therefore,  the 
Comissioners  for  the  Mattachusetts,  Conecktacutt  and  New  Haven, 
doe  also  for  our  seuerall  Gouernments,  subscribe  vnto  them. 

JOHN  WINTHROP,  Governor  of  Massachusetts, 
THO.  DUDLEY, 

THEOPH.  EATON, 

GEO.  FENWICK, 

EDWA.  HOPKINS, 

THOMAS  GREGSON. 


II 

PENN'S  PLAN  OF  UNION —  1697 
MR.  PENN'S  PLAN  FOR  A  UNION  OF  THE  COLONIES  IN  AMERICA 

A  BRIEFE  and  Plaine  Scheam  how  the  English  Colonies  in  the  North     APPENDIX 
parts  of  America,  viz. :  Boston,  Connecticut,  Road  Island,  New  York,  II 

New  Jerseys,  Pensilvania,  Maryland,  Virginia,  and  Carolina  may  be 
made  more  usefull  to  the  Crowne,  and  one  another's  peace  and  safty 
with  an  universall  concurrence. 

1st.  That  the  severall  Colonies  before  mentioned  do  meet  once  a  year, 
and  oftener  if  need  be,  during  the  war,  and  at  least  once  in  two  years  in 
times  of  peace,  by  their  stated  and  appointed  Deputies,  to  debate  and 
resolve  of  such  measures  as  are  most  adviseable  for  their  better  under- 
standing, and  the  public  tranquility  and  safety. 

2d.  That  in  order  to  it  two  persons  well  qualified  for  sence,  sobriety 
and  substance  be  appointed  by  each  Province,  as  their  Representatives 
or  Deputies,  which  in  the  whole  make  the  Congress  to  consist  of  twenty 
persons. 

3d.  That  the  King's  Commissioner  for  that  purpose  specially  ap- 
pointed shall  have  the  chaire  and  preside  in  the  said  Congresse. 

4th.  That  they  shall  meet  as  near  as  conveniently  may  be  to  the  most 
centrall  Colony  for  use  of  the  Deputies. 

5th.  Since  that  may  in  all  probability,  be  New  York  both  because  it 
is  near  the  Center  of  the  Colonies  and  for  that  it  is  a  Frontier  and  in  the 
King's  nomination,  the  Govr.  of  that  Colony  may  therefore  also  be  the 
King's  High  Commissioner  during  the  Session  after  the  manner  of 
Scotland. 

6th.  That  their  business  shall  be  to  hear  and  adjust  all  matters  of 
Complaint  or  difference  between  Province  and  Province.  As,  1st,  where 
persons  quit  their  own  Province  and  goe  to  another,  that  they  may  avoid 
their  just  debts,  tho  they  be  able  to  pay  them,  2nd,  where  offenders  fly 
Justice,  or  Justice  cannot  well  be  had  upon  such  offenders  in  the  Pro- 
vinces that  entertaine  them,  3dly,  to  prevent  or  cure  injuries  in  point  of 
Commerce,  4th,  to  consider  of  ways  and  means  to  support  the  union  and 
safety  of  these  Provinces  against  the  publick  enemies.  In  which  Con- 
gresse the  Quotas  of  men  and  charges  will  be  much  easier,  and  more 
equally  sett,  then  it  is  possible  for  any  establishment  made  here  to  do; 
for  the  Provinces,  knowing  their  own  condition  and  one  another's,  can 
debate  that  matter  with  more  freedome  and  satisfaction  and  better 
adjust  and  ballance  their  affairs  in  all  respects  for  their  common  safty. 

7ly.  That  in  times  of  war  the  King's  High  Commissioner  shall  be 
generall  or  chief  Commander  of  the  severall  Quotas  upon  service  against 
a  common  enemy  as  he  shall  be  advised,  for  the  good  and  benefit  of  the 
whole. 


Ill 

COXE  AND   FRANKLIN'S  PLAN  OF  UNION  — 1754 

APPENDIX         PLAN  of  a  proposed  Union  of  the  several  Colonies  of  Massachusetts 

III  Bay,  New  Hampshire,  Connecticut,  Rhode  Island,  New  York,  New 

Jersey,  Pennsylvania,  Maryland,  Virginia,  North  Carolina,  and  South 

Carolina  for  their  mutual  Defence  and  Security,  and  for  the  extending 

the  British  Settlements  in  North  America. 

That  humble  application  be  made  for  an  act  of  Parliament  of  Great 
Britain,  by  virtue  of  which  one  general  government  may  be  formed  in 
America,  including  all  the  said  Colonies,  within  and  under  which  gov- 
ernment each  Colony  may  retain  its  present  constitution,  except  in  the 
particulars  wherein  a  change  may  be  directed  by  the  said  act,  as  here- 
after follows. 

PRESIDENT-GENERAL  AND  GRAND  COUNCIL 

That  the  said  general  government  be  administered  by  a  President- 
General,  to  be  appointed  and  supported  by  the  Crown;  and  a  Grand 
Council  to  be  chosen  by  the  representatives  of  the  people  of  the  several 
Colonies  met  in  their  respective  assemblies. 

It  was  thought  that  it  would  be  best  the  President-General  should  be 
supported  as  well  as  appointed  by  the  Crown,  that  so  all  disputes  between 
him  and  the  Grand  Council  concerning  his  salary  might  be  prevented;  as 
such  disputes  have  been  frequently  of  mischievous  consequence  in  particular 
Colonies,  especially  in  time  of  public  danger.  The  quit-rents  of  crown  lands 
in  America  might  in  a  short  time  be  sufficient  for  this  purpose.  The  choice 
of  members  for  the  Grand  Council  is  placed  in  the  House  of  Representatives 
of  each  government,  in  order  to  give  the  people  a  share  in  this  new  general 
government,  as  the  Crown  has  its  share  by  the  appointment  of  the  President- 
General. 

But  it  being  proposed  by  the  gentlemen  of  the  Council  of  New  York,  and 
some  other  counsellors  among  the  commissioners,  to  alter  the  plan  in  this 
particular,  and  to  give  the  governors  and  councils  of  the  several  Provinces 
a  share  in  the  choice  of  the  Grand  Council,  or  at  least  a  power  of  approving 
and  confirming,  or  of  disallowing,  the  choice  made  by  the  House  of  Repre- 
sentatives, it  was  said,  —  "That  the  government  or  constitution,  proposed 
to  be  formed  by  the  plan,  consists  of  two  branches:  a  President-General 
appointed  by  the  Crown,  and  a  Council  chosen  by  the  people,  or  by  the 
people's  representatives,  which  is  the  same  thing. 

"That,  by  a  subsequent  article,  the  council  chosen  by  the  people  can 
effect  nothing  without  the  consent  of  the  President-General  appointed  by 
the  Crown;  the  Crown  possesses,  therefore,  full  one  half  of  the  power  of  this 
constitution. 

"That  in  the  British  Constitution,  the  Crown  is  supposed  to  possess  but 
one  third,  the  Lords  having  their  share. 

"That  the  constitution  seemed  rather  more  favorable  for  the  Crown. 

"That  it  is  essential  to  English  liberty  that  the  subject  should  not  be 
taxed  but  by  his  own  consent,  or  the  consent  of  his  elected  representatives. 


"APPENDIX  485 

"That  taxes  to  be  laid  and  levied  by  this  proposed  constitution  will  be      APPENDIX 
proposed  and  agreed  to  by  the  representatives  of  the  people,  if  the  plan  in  III 

this  particular  be  preserved. 

"  But  if  the  proposed  alteration  should  take  place,  it  seemed  as  if  matters 
may  be  so  managed,  as  that  the  Crown  shall  finally  have  the  appointment, 
not  only  of  the  President-General,  but  of  a  majority  of  the  Grand  Council; 
for  seven  out  of  eleven  governors  and  councils  are  appointed  by  the  Crown. 

"And  so  the  people  in  all  the  Colonies  would  in  effect  be  taxed  by  their 
governors. 

"  It  was  therefore  apprehended,  that  such  alterations  of  the  plan  would 
give  great  dissatisfaction,  and  that  the  Colonies  could  not  be  easy  under 
such  a  power  in  governors,  and  such  an  infringement  of  what  they  take  to  be 
English  liberty. 

"Besides,  the  giving  a  share  in  the  choice  of  the  Grand  Council  would  not 
be  equal  with  respect  to  all  the  Colonies,  as  their  constitutions  differ.  In 
some,  both  governor  and  council  are  appointed  by  the  Crown.  In  others, 
they  are  both  appointed  by  the  proprietors.  In  some,  the  people  have  a 
share  in  the  choice  of  the  council;  in  others,  both  government  and  council 
are  wholly  chosen  by  the  people.  But  the  House  of  Representatives  is 
everywhere  chosen  by  the  people;  and,  therefore,  placing  the  right  of  choos- 
ing the  Grand  Council  in  the  representatives  is  equal  with  respect  to  all. 

"That  the  Grand  Council  is  intended  to  represent  all  the  several  Houses 
of  Representatives  of  the  Colonies,  as  a  House  of  Representatives  doth  the 
several  towns  or  counties  of  a  Colony.  Could  all  the  people  of  a  Colony  be 
consulted  and  unite  in  public  measures,  a  House  of  Representatives  would 
be  needless,  and  could  all  the  Assemblies  consult  and  unite  in  general  meas- 
ures, the  Grand  Council  would  be  unnecessary. 

"That  a  House  of  Commons  or  the  House  of  Representatives,  and  the 
Grand  Council  are  alike  in  their  nature  and  intention.  And,  as  it  would  seem 
improper  that  the  King  or  House  of  Lords  should  have  a  power  of  disallow- 
ing or  appointing  Members  of  the  House  of  Commons;  so,  likewise,  that  a 
governor  and  council  appointed  by  the  Crown  should  have  a  power  of  dis- 
allowing or  appointing  members  of  the  Grand  Council,  who,  in  this  consti- 
tution, are  to  be  the  representatives  of  the  people. 

"  If  the  governor  and  councils  therefore  were  to  have  a  share  in  the  choice 
of  any  that  are  to  conduct  this  general  government,  it  should  seem  more 
proper  that  they  should  choose  the  President-General.  But  this  being  an 
office  of  great  trust  and  importance  to  the  nation,  it  was  thought  better  to 
be  filled  by  the  immediate  appointment  of  the  Crown. 

"The  power  proposed  to  be  given  by  the  plan  to  the  Grand  Council  is  only 
a  concentration  of  the  powers  of  the  several  assemblies  in  certain  points  for 
the  general  welfare;  as  the  power  of  the  President-General  is  of  the  several 
governors  in  the  same  point. 

"And  as  the  choice  therefore  of  the  Grand  Council,  by  the  representatives 
of  the  people,  neither  gives  the  people  any  new  powers,  nor  diminishes  the 
power  of  the  Crown,  it  was  thought  and  hoped  the  Crown  would  not  dis- 
approve of  it." 

Upon  the  whole,  the  commissioners  were  of  opinion,  that  the  choice  was 
most  properly  placed  in  the  representatives  of  the  people. 

ELECTION   OF  MEMBERS 
That  within  months  after  the  passing  such  act,  the  House  of 


486  APPENDIX 

APPENDIX     Representatives  that  happens  to  be  sitting  within  that  time,  or  that 
III  shall  be  especially  for  that  purpose  convened,  may  and  shall  choose 

members  for  the  Grand  Council,  in  the  following  proportion,  that  is  to 

say, — 

Massachusetts  Bay 7 

New  Hampshire 2 

Connecticut 5 

Rhode  Island 2 

New  York 4 

New  Jersey 3 

Pennsylvania 6 

Maryland 4 

Virginia 7 

North  Carolina 4 

South  Carolina _4 

48 

It  was  thought,  that  if  the  least  Colony  was  allowed  two,  and  the  others 
in  proportion,  the  number  would  be  very  great,  and  the  expense  heavy;  and 
that  less  than  two  would  not  be  convenient,  as,  a  single  person  being  by  any 
accident  prevented  appearing  at  the  meeting,  the  Colony  he  ought  appear 
for  would  not  be  represented.  That,  as  the  choice  was  not  immediately 
popular,  they  would  be  generally  men  of  good  abilities  for  business,  and  men 
of  reputation  for  integrity,  and  that  forty-eight  such  men  might  be  a  num- 
ber sufficient.  But,  though  it  was  thought  reasonable  that  each  Colony 
should  have  a  share  in  the  representative  body  in  some  degree  according  to 
the  proportion  it  contributed  to  the  general  treasury,  yet  the  proportion  of 
wealth  or  power  of  the  Colonies  is  not  to  be  judged  by  the  proportion  here 
fixed:  because  it  was  at  first  agreed,  that  the  greatest  Colony  should  not 
have  more  than  seven  members,  nor  the  least  less  than  two;  and  the  setting 
these  proportions  between  these  two  extremes  was  not  nicely  attended  to, 
as  it  would  find  itself,  after  the  first  election,  from  the  sum  brought  into  the 
treasury  by  a  subsequent  article. 

PLACE   OF  FIRST  MEETING 

—  Who  shall  meet  for  the  first  time  at  the  city  of  Philadelphia  in 
Pennsylvania,  being  called  by  the  President-General  as  soon  as  con- 
veniently may  be  after  his  appointment. 

Philadelphia  was  named  as  being  nearer  the  centre  of  the  Colonies,  where 
the  commissioners  would  be  well  and  cheaply  accommodated.  The  high 
roads,  through  the  whole  extent,  are  for  the  most  part  very  good,  in  which 
forty  or  fifty  miles  a  day  may  very  well  be,  and  frequently  ate,  travelled. 
Great  part  of  the  way  may  likewise  be  gone  by  water.  In  summer  time,  the 
passages  are  frequently  performed  in  a  week  from  Charleston  to  Philadel- 
phia and  New  York,  and  from  Rhode  Island  to  New  York  through  the 
Sound,  in  two  or  three  days,  and  from  New  York  to  Philadelphia,  by  water 
and  land,  in  two  days,  by  stage  boats,  and  street  carriages  that  set  out  every 
other  day.  The  journey  from  Charleston  to  Philadelphia  may  likewise  be 
facilitated  by  boats  running  up  Chesapeake  Bay  three  hundred  miles.  But 
if  the  whole  journey  be  performed  on  horseback,  the  most  distant  members, 
viz.,  the  two  from  New  Hampshire  and  from  South  Carolina,  may  probably 


APPENDIX  487 

render  themselves  at  Philadelphia  in  fifteen  or  twenty  days;  the  majority     APPENDIX 
may  be  there  in  much  less  time.  HI 

NEW  ELECTION 

That  there  shall  be  a  new  election  of  the  members  of  the  Grand  Coun- 
cil every  three  years;  and,  on  the  death  or  resignation  of  any  member, 
his  place  should  be  supplied  by  a  new  choice  at  the  next  sitting  of  the 
Assembly  of  the  Colony  he  represented. 

Some  Colonies  have  annual  assemblies,  some  continue  during  a  governor's 
pleasure;  three  years  was  thought  a  reasonable  medium  as  affording  a  new 
member  time  to  improve  himself  in  the  business,  and  to  act  after  such  im- 
provement, and  yet  giving  opportunities,  frequently  enough,  to  change  him 
if  he  has  misbehaved. 

PROPORTION    OF    MEMBERS    AFTER    THE    FIRST    THREE    YEARS 

That  after  the  first  three  years,  when  the  proportion  of  money  arising 
out  of  each  Colony  to  the  general  treasury  can  be  known,  the  number  of 
members  to  be  chosen  for  each  Colony  shall,  from  time  to  time,  in  all 
ensuing  elections,  be  regulated  by  that  proportion,  yet  so  as  that  the 
number  to  be  chosen  by  any  one  Province  be  not  more  than  seven,  nor 
less  than  two. 

By  a  subsequent  article,  it  is  proposed  that  the  General  Council  shall  lay 
and  levy  such  general  duties  as  to  them  may  appear  most  equal  and  least 
burdensome,  etc.  Suppose,  for  instance,  they  lay  a  small  duty  or  excise  on 
some  commodity  imported  into  or  made  in  the  Colonies,  and  pretty  gener- 
ally and  equally  used  in  all  of  them,  as  rum,  perhaps,  or  wine;  the  yearly 
produce  of  this  duty  or  excise,  if  fairly  collected,  would  be  in  some  Colonies 
greater,  in  others  less,  as  the  Colonies  are  greater  or  smaller.  When  the 
collector's  accounts  are  brought  in,  the  proportions  will  appear;  and  from 
them  it  is  proposed  to  regulate  the  proportion  of  the  representatives  to  be 
chosen  at  the  next  general  election,  within  the  limits,  however,  of  seven  and 
two.  These  numbers  may  therefore  vary  in  the  course  of  years,  as  the  Col- 
onies may  in  the  growth  and  increase  of  people.  And  thus  the  quota  of  tax 
from  each  Colony  would  naturally  vary  with  its  circumstances,  thereby 
preventing  all  disputes  and  dissatisfaction  about  the  just  proportions  due 
from  each,  which  might  otherwise  produce  pernicious  consequences,  and 
destroy  the  harmony  and  good  agreement  that  ought  to  subsist  between  the 
several  parts  of  the  Union. 

MEETINGS   OF  THE  GRAND  COUNCIL  AND  CALL 

That  the  Grand  Council  shall  meet  once  in  every  year,  and  oftener 
if  occasion  require,  at  such  time  and  place  as  they  shall  adjourn  to  at 
the  last  preceding  meeting,  or  as  they  shall  be  called  to  meet  at  by  the 
President-General  on  any  emergency ;  he  having  first  obtained  in  writing 
the  consent  of  seven  of  the  members  to  such  call,  and  sent  due  and  timely 
notice  to  the  whole. 

It  was  thought,  in  establishing  and  governing  new  Colonies  or  settle- 


488  APPENDIX 

APPENDIX  ments,  or  regulating  Indian  trade,  Indian  treaties,  etc.,  there  would,  every 
III  year,  sufficient  business  arise  to  require  at  least  one  meeting,  and  at  such 

meeting  many  things  might  be  suggested  for  the  benefit  of  all  the  Colonies. 
This  annual  meeting  may  either  be  at  a  time  and  place  certain,  to  be  fixed 
by  the  President-General  and  Grand  Council  at  their  first  meeting;  or  left 
at  liberty,  to  be  at  such  time  and  place  as  they  shall  adjourn  to,  or  be  called 
to  meet  at,  by  the  President-General. 

In  time  of  war,  it  seems  convenient  that  the  meeting  should  be  in  that 
colony  which  is  nearest  the  seat  of  action. 

The  power  of  calling  them  on  any  emergency  seemed  necessary  to  be 
vested  in  the  President-General;  but,  that  such  power  might  not  be  wantonly 
used  to  harass  the  members,  and  oblige  them  to  make  frequent  long  journeys 
to  little  purpose,  the  consent  of  seven  at  least  to  such  call  was  supposed 
a  convenient  guard. 

CONTINUANCE 

That  the  Grand  Council  have  power  to  choose  their  speaker ;  and  shall 
neither  be  dissolved,  prorogued,  nor  continued  sitting  longer  than  six 
weeks  at  one  time,  without  their  own  consent  or  the  special  command  of 
the  Crown. 

The  speaker  should  be  presented  for  approbation;  it  being  convenient,  to 
prevent  misunderstandings  and  disgusts,  that  the  mouth  of  the  Council 
should  be  a  person  agreeable,  if  possible,  to  the  Council  and  President- 
General. 

Governors  have  sometimes  wantonly  exercised  the  power  of  proroguing 
or  continuing  the  sessions  of  assemblies,  merely  to  harass  the  members  and 
compel  a  compliance;  and  sometimes  dissolve  them  on  slight  disgusts.  This 
it  was  feared  might  be  done  by  the  President-General,  if  not  provided 
against;  and  the  inconvenience  and  hardship  would  be  greater  in  the  general 
government  than  in  particular  Colonies,  in  proportion  to  the  distance  the 
members  must  be  from  home  during  sittings,  and  the  long  journeys  some  of 
them  must  necessarily  take. 


That  the  members  of  the  Grand  Council  shall  be  allowed  for  their 
service  ten  shillings  per  diem,  during  their  session  and  journey  to  and 
from  the  place  of  meeting;  twenty  miles  to  be  reckoned  a  day's  journey. 

It  was  thought  proper  to  allow  some  wages,  lest  the  expense  might  deter 
some  suitable  persons  from  the  service;  and  not  to  allow  too  great  wages, 
lest  unsuitable  persons  should  be  tempted  to  cabal  for  the  employment,  for 
the  sake  of  gain.  Twenty  miles  were  set  down  as  a  day's  journey,  to  allow 
for  accidental  hindrances  on  the  road,  and  the  greater  expenses  of  travelling 
than  residing  at  the  place  of  meeting. 

ASSENT   OF  PRESIDENT-GENERAL  AND  HIS  DUTY 

That  the  assent  of  the  President-General  be  requisite  to  all  acts  of 
the  Grand  Council,  and  that  it  be  his  office  and  duty  to  cause  them  to  be 
carried  into  execution. 


APPENDIX  489 

The  assent  of  the  President-General  to  all  acts  of  the  Grand  Council  was      APPENDIX 
made  necessary  in  order  to  give  the  Crown  its  due  share  of  influence  in  this  III 

government,  and  connect  it  with  that  of  Great  Britain.  The  President- 
General,  besides  one  half  of  the  legislative  power,  hath  in  his  hands  the 
whole  executive  power. 

POWER    OF   PRESIDENT-GENERAL   AND   GRAND   COUNCIL 
TREATIES   OF  PEACE  AND  WAR 

That  the  President-General,  with  the  advice  of  the  Grand  Council, 
hold  or  direct  all  Indian  treaties,  in  which  the  general  interest  of  the 
Colonies  may  be  concerned,  and  make  peace  or  declare  war  with  Indian 
nations. 

The  power  of  making  peace  or  war  with  Indian  nations  is  at  present  sup- 
posed to  be  in  every  Colony,  and  is  expressly  granted  to  some  by  charter, 
so  that  no  new  power  is  hereby  intended  to  be  granted  to  the  Colonies.  But 
as,  in  consequence  of  this  power,  one  Colony  might  make  peace  with  a  nation 
that  another  was  justly  engaged  in  war  with;  or  make  war  on  slight  occasion 
without  the  concurrence  or  approbation  of  neighboring  Colonies,  greatly 
endangered  by  it;  or  make  particular  treaties  of  neutrality  in  case  of  a  gen- 
eral war,  to  their  own  private  advantage  in  trade,  by  supplying  the  com- 
mon enemy,  of  all  which  there  have  been  instances,  it  was  thought  better  to 
have  all  treaties  of  a  general  nature  under  a  general  direction,  that  so  the 
good  of  the  whole  may  be  consulted  and  provided  for. 

INDIAN  TRADE 

That  they  make  such  laws  as  they  judge  necessary  for  regulating  all 
Indian  trade. 

Many  quarrels  and  wars  have  arisen  between  the  colonies  and  Indian 
nations,  through  the  bad  conduct  of  traders,  who  cheat  the  Indians  after 
making  them  drunk,  etc.,  to  the  great  expense  of  the  colonies,  both  in  blood 
and  treasure.  Particular  colonies  are  so  interested  in  the  trade,  as  not  to  be 
willing  to  admit  such  a  regulation  as  might  be  best  for  the  whole;  and  there- 
fore it  was  thought  best  under  a  general  direction. 

INDIAN   PURCHASES 

That  they  make  all  purchases  from  Indians,  for  the  Crown,  of  lands  not 
now  within  the  bounds  of  particular  colonies,  or  that  shall  not  be  within 
their  bounds  when  some  of  them  are  reduced  to  more  convenient  dimen- 
sions. 

Purchases  from  the  Indians,  made  by  private  persons,  have  been  attended 
with  many  inconveniences.  They  have  frequently  interfered  and  occa- 
sioned uncertainty  of  titles,  many  disputes  and  expensive  lawsuits,  and 
hindered  the  settlement  of  the  land  so  disputed.  Then  the  Indians  have  been 
cheated  by  such  private  purchases,  and  discontent  and  wars  have  been  the 
consequence.  These  would  be  prevented  by  public  fair  purchases. 

Several  of  the  Colony  charters  in  America  extend  their  bounds  to  the 
South  Sea,  which  may  perhaps  be  three  or  four  thousand  miles  in  length 
to  one  or  two  hundred  miles  in  breadth.  It  is  supposed  they  must  in  time  be 


490  APPENDIX 

APPENDIX      reduced  to  dimensions  more  convenient  for  the  common  purposes  of  govern- 
Ill  ment. 

Very  little  of  the  land  in  these  grants  is  yet  purchased  of  the  Indians. 
It  is  much  cheaper  to  purchase  of  them,  than  to  take  and  maintain  the 
possession  by  force;  for  they  are  generally  very  reasonable  in  their  demands 
for  land ;  and  the  expense  of  guarding  a  large  frontier  against  their  incursions 
is  vastly  great;  because  all  must  be  guarded,  and  always  guarded,  as  we 
know  not  where  or  when  to  expect  them. 

NEW  SETTLEMENTS 

That  they  make  new  settlements  on  such  purchases  by  granting  lands 
in  the  King's  name,  reserving  a  quit-rent  to  the  Crown  for  the  use  of  the 
general  treasury. 

It  is  supposed  better  that  there  should  be  one  purchaser  than  many;  and 
that  the  Crown  should  be  that  purchaser,  or  the  Union  in  the  name  of  the 
Crown.  By  this  means  the  bargains  may  be  more  easily  made,  the  price  not 
enhanced  by  numerous  bidders,  future  disputes  about  private  Indian  pur- 
chases, and  monopolies  of  vast  tracts  to  particular  persons  (which  are  pre- 
judicial to  the  settlement  and  peopling  of  the  country),  prevented;  and,  the 
land  being  again  granted  in  small  tracts  to  the  settlers,  the  quit-rents 
reserved  may  in  time  become  a  fund  for  support  of  government,  for  de- 
fence of  the  country,  case  of  taxes,  etc. 

Strong  forts  on  the  Lakes,  the  Ohio,  etc.,  may,  at  the  same  time  they 
secure  our  present  frontiers,  serve  to  defend  new  colonies  settled  under  their 
protection;  and  such  colonies  would  also  mutually  defend  and  support  such 
forts,  and  better  secure  the  friendship  of  the  far  Indians. 

A  particular  colony  has  scarce  strength  enough  to  exert  itself  by  new 
settlements,  at  so  great  a  distance  from  the  old;  but  the  joint  force  of  the 
Union  might  suddenly  establish  a  new  colony  or  two  in  those  parts,  or 
extend  an  old  colony  to  particular  passes,  greatly  to  the  security  of  our  pre- 
sent frontiers,  increase  of  trade  and  people,  breaking  off  the  French  commun- 
ication between  Canada  and  Louisiana,  and  speedy  settlement  of  the  inter- 
mediate lands. 

The  power  of  settling  new  colonies  is  therefore  thought  a  valuable  part 
of  the  plan,  and  what  cannot  so  well  be  executed  by  two  unions  as  by  one. 

LAWS  TO  GOVERN  THEM 

That  they  make  laws  for  regulating  and  governing  such  new  settle- 
ments, till  the  Crown  shall  think  fit  to  form  them  into  particular  govern- 
ments. 

The  making  of  laws  suitable  for  the  new  colonies,  it  was  thought,  would 
be  properly  vested  in  the  President-General  and  Grand  Council;  under  whose 
protection  they  must  at  first  necessarily  be,  and  who  would  be  well  ac- 
quainted with  their  circumstances,  as  having  settled  them.  When  they  are 
become  sufficiently  populous,  they  may  by  the  Crown  be  formed  into  com- 
plete and  distinct  governments. 

The  appointment  of  a  sub-president  by  the  Crown,  to  take  place  in  case  of 
the  death  or  absence  of  the  President-General,  would  perhaps  be  an  improve- 
ment of  the  plan ;  and  if  all  the  governors  of  particular  provinces  were  to  be 


APPENDIX  491 

formed  into  a  standing  council  of  state,  for  the  advice  and  assistance  of  the      APPENDIX 
President-General,  it  might  be  another  considerable  improvement.  HI 

RAISE   SOLDIERS,   AND  EQUIP  VESSELS,   ETC. 

That  they  raise  and  pay  soldiers  and  build  forts  for  the  defence  of  any 
of  the  colonies,  and  equip  vessels  of  force  to  guard  the  coasts  and  protect 
the  trade  on  the  ocean,  lakes,  or  great  rivers;  but  they  shall  not  impress 
men  in  any  colony,  without  the  consent  of  the  legislature. 

It  was  thought,  that  quotas  of  men,  to  be  raised  and  paid  by  the  several 
colonies,  and  joined  for  any  public  service,  could  not  always  be  got  together 
with  the  necessary  expedition.  For  instance,  suppose  one  thousand  men 
should  be  wanted  in  New  Hampshire  on  any  emergency.  To  fetch  them  by 
fifties  and  hundreds  out  of  every  colony,  as  far  as  South  Carolina,  would 
be  inconvenient,  the  transportation  chargeable,  and  the  occasion  perhaps 
passed  before  they  could  be  assembled;  and  therefore  it  would  be  best  to 
raise  them  (by  offering  bounty  money  and  pay)  near  the  place  where  they 
would  be  wanted,  to  be  discharged  again  when  the  service  should  be  over. 

Particular  colonies  are  at  present  backward  to  build  forts  at  their  own 
expense,  which  they  say  will  be  equally  useful  to  their  neighboring  colonies, 
who  refuse  to  join,  on  a  presumption  that  such  forts  will  be  built  and  kept 
up,  though  they  contribute  nothing.  This  unjust  conduct  weakens  the 
whole;  but,  the  forts  being  for  the  good  of  the  whole,  it  was  thought  best  they 
should  be  built  and  maintained  by  the  whole,  out  of  the  common  treasury. 

In  the  time  of  war,  small  vessels  of  force  are  sometimes  necessary  in  the 
colonies  to  scour  the  coasts  of  small  privateers.  These  being  provided  by 
the  Union  will  be  an  advantage  in  turn  to  the  colonies  which  are  situated  on 
the  sea,  and  whose  frontiers  on  the  land-side,  being  covered  by  other  colo- 
nies, reap  but  little  immediate  benefit  from  the  advanced  forts. 

POWER  TO  MAKE  LAWS,  LAY  DUTIES,  ETC. 

That  for  these  purposes  they  have  power  to  make  laws  and  lay  and 
levy  such  general  duties,  imposts  or  taxes,  as  to  them  shall  appear  most 
equal  and  just  (considering  the  ability  and  other  circumstances  of  the 
inhabitants  in  the  several  colonies),  and  such  as  may  be  collected  with 
the  least  inconvenience  to  the  people;  rather  discouraging  luxury,  than 
loading  industry  with  unnecessary  burdens. 

The  laws  which  the  President-General  and  Grand  Council  are  empowered 
to  make  are  such  only  as  shall  be  necessary  for  the  government  of  the  settle- 
ments; the  raising,  regulating,  and  paying  soldiers  for  the  general  service; 
the  regulating  of  Indian  trade;  and  laying  and  collecting  the  general  duties 
and  taxes.  They  should  also  have  a  power  to  restrain  the  exportation  of 
provisions  to  the  enemy  from  any  of  the  colonies,  on  particular  occasions, 
in  time  of  war.  But  it  is  not  intended  that  they  may  interfere  with  the  con- 
stitution or  government  of  the  particular  colonies,  who  are  to  be  left  to  their 
own  laws,  and  to  lay,  levy,  and  apply  their  own  taxes  as  before. 

GENERAL  TREASURER  AND  PARTICULAR  TREASURER 

That  they  may  appoint  a  General  Treasurer,  and  Particular  Treasurer 
in  government  when  necessary;  and,  from  time  to  time,  may  order  the 


492  APPENDIX 

APPENDIX     sums  in  the'treasuries  of  each  government  into  the  general  treasury,  or 
III  draw  on  them  for  special  payments,  as  they  find  most  convenient. 

The  treasurers  here  meant  are  only  for  the  general  funds  and  not  for  the 
particular  funds  of  each  colony,  which  remain  in  the  hands  of  their  own 
treasurers  at  their  own  disposal. 

MONEY,   HOW  TO  ISSUE 

Yet  no  money  to  issue  but  by  joint  orders  of  the  President-General 
and  Grand  Council,  except  where  sums  have  been  appointed  to  partic- 
ular purposes,  and  the  President-General  is  previously  empowered  by 
an  act  to  draw  such  sums. 

To  prevent  misapplication  of  the  money,  or  even  application  that  might 
be  dissatisfactory  to  the  Crown  or  the  people,  it  was  thought  necessary  to 
join  the  President- General  and  Grand  Council  in  all  issues  of  money. 

ACCOUNTS 

That  the  general  accounts  shall  be  yearly  settled  and  reported  to  the 
several  Assemblies. 

By  communicating  the  accounts  yearly  to  each  Assembly,  they  will  be 
satisfied  of  the  prudent  and  honest  conduct  of  their  representatives  in  the 
Grand  Council. 

QUORUM 

That  a  quorum  of  the  Grand  Council,  empowered  to  act  with  the 
President-General,  do  consist  of  twenty-five  members;  among  whom 
there  shall  be  one  or  more  from  a  majority  of  the  Colonies. 

The  quorum  seems  large,  but  it  was  thought  it  would  not  be  satisfactory 
to  the  colonies  in  general,  to  have  matters  of  importance  to  the  whole  trans- 
acted by  a  smaller  number,  or  even  by  this  number  of  twenty-five,  unless 
there  were  among  them  one  at  least  from  a  majority  of  the  colonies,  because 
otherwise,  the  whole  quorum  being  made  up  of  members  from  three  or  four 
colonies  at  one  end  of  the  union,  something  might  be  done  that  would  not  be 
equal  with  respect  to  the  rest,  and  thence  dissatisfaction  and  discords  might 
arise  to  the  prejudice  of  the  whole. 

LAWS  TO  BE  TRANSMITTED 

That  the  laws  made  by  them  for  the  purposes  aforesaid  shall  not  be 
repugnant,  but,  as  near  as  may  be,  agreeable  to  the  laws  of  England, 
and  shall  be  transmitted  to  the  King  in  Council  for  approbation,  as  soon 
as  may  be  after  their  passing ;  and  if  not  disapproved  within  three  years 
after  presentation,  to  remain  in  force. 

This  was  thought  necessary  for  the  satisfaction  of  the  Crown,  to  preserve 
the  connection  of  the  parts  of  the  British  Empire  with  the  whole,  of  the 
members  with  the  head,  and  to  induce  greater  care  and  circumspection  in 
making  of  the  laws,  that  they  be  good  in  themselves  and  for  the  general 
benefit. 


APPENDIX  493 

DEATH  OF  THE  PRESIDENT-GENERAL  APPENDIX 

III 

That,  in  case  of  the  death  of  the  President-General,  the  Speaker  of 
the  Grand  Council  for  the  time  being  shall  succeed,  and  be  vested  with 
the  same  powers  and  authorities,  to  continue  till  the  King's  pleasure 
be  known. 

It  might  be  better,  perhaps,  as  was  said  before,  if  the  Crown  appointed  a 
Vice-President,  to  take  place  on  the  death  or  absence  of  the  President- 
General  ;  for  so  we  should  be  more  sure  of  a  suitable  person  at  the  head  of  the 
colonies.  On  the  death  or  absence  of  both,  the  Speaker  to  take  place  (or 
rather  the  eldest  King's  Governor)  till  his  Majesty's  pleasure  be  known. 

OFFICERS,   HOW  APPOINTED 

That  all  military  commission  officers,  whether  for  land  or  sea  service, 
to  act  under  this  general  constitution,  shall  be  nominated  by  the 
President-General ;  but  the  approbation  of  the  Grand  Council  is  to  be 
obtained,  before  they  receive  their  commissions.  And  all  civil  officers 
are  to  be  nominated  by  the  Grand  Council,  and  to  receive  the  President- 
General's  approbation  before  they  officiate. 

It  was  thought  it  might  be  very  prejudicial  to  the  service,  to  have  officers 
appointed  unknown  to  the  people  or  unacceptable,  the  generality  of  Amer- 
icans serving  willingly  under  officers  they  know;  and  not  caring  to  engage 
in  the  service  under  strangers,  or  such  as  are  often  appointed  by  governors 
through  favor  or  interest.  The  service  here  meant,  is  not  the  stated,  settled 
service  in  standing  troops;  but  any  sudden  and  short  service,  either  for 
defence  of  our  colonies,  or  invading  the  enemy's  country  (such  as  the  expedi- 
tion to  Cape  Breton  in  the  last  war;  in  which  many  substantial  farmers  and 
tradesmen  engaged  as  common  soldiers,  under  officers  of  their  own  country, 
for  whom  they  had  an  esteem  and  affection;  who  would  not  have  engaged  in 
a  standing  army,  or  under  officers  from  England).  It  was  therefore  thought 
best  to  give  the  Council  the  power  of  approving  the  officers,  which  the  people 
will  look  on  as  a  great  security  of  their  being  good  men.  And  without  some 
such  provision  as  this,  it  was  thought  the  expense  of  engaging  men  in  the 
service  on  any  emergency  would  be  much  greater,  and  the  number  who 
could  be  induced  to  engage  much  less;  and  that  therefore  it  would  be  most 
for  the  King's  service  and  the  general  benefit  of  the  nation,  that  the  pre- 
rogative should  relax  a  little  in  this  particular  throughout  all  the  colonies  in 
America;  as  it  had  already  done  much  more  in  the  charters  of  some  particular 
colonies,  viz.:  Connecticut  and  Rhode  Island. 

The  civil  officers  will  be  chiefly  treasurers  and  collectors  of  taxes;  and  the 
suitable  persons  are  most  likely  to  be  known  by  the  Council. 

VACANCIES,   HOW  SUPPLIED 

But,  in  case  of  vacancy  by  death  or  removal  of  any  officer,  civil  or 
military,  under  this  constitution,  the  Governor  of  the  province  in  which 
such  vacancy  happens,  may  appoint,  till  the  pleasure  of  the  President- 
General  and  Grand  Council  can  be  known. 

The  vacancies  were  thought  best  supplied  by  the  governors  in  each  pro- 


494  APPENDIX 

APPENDIX      vince,  till  a  new  appointment  can  be  regularly  made;  otherwise  the  service 
III  might  suffer  before  the  meeting  of  the  President-General  and  Grand  Council. 

EACH  COLONY  MAY  DEFEND  ITSELF  IN  EMERGENCY,  ETC. 

That  the  particular  military  as  well  as  civil  establishments  in  each 
colony  remain  in  their  present  state,  the  general  constitution  notwith- 
standing ;  and  that  on  sudden  emergencies  any  colony  may  defend  itself, 
and  lay  the  accounts  of  expense  thence  arising  before  the  President- 
General  and  General  Council,  who  may  allow  and  order  payment  of  the 
same,  as  far  as  they  judge  such  accounts  just  and  reasonable. 

Otherwise  the  union  of  the  whole  would  weaken  the  parts,  contrary  to  the 
design  of  the  Union.  The  accounts  are  to  be  judged -of  by  the  President- 
General  and  Grand  Council,  andallowed  if  found  reasonable.  This  was  thought 
necessary  to  encourage  colonies  to  defend  themselves,  as  the  expense  would 
be  light  when  borne  by  the  whole;  and  also  to  check  imprudent  and  lavish 
expense  in  such  defences. 

In  Carey's  A merican  Museum,  1789,  February  (pp.  190-194),  March  (pp. 
285-288),  April  (pp.  365-368),  there  is  an  elaborate  article,  "Albany  Plan 
of  Union,"  at  the  conclusion  of  which  appears  the  following:  — 

"REMARK  FEBRUARY  9,  1789 

"On  Reflection  it  now  seems  probable,  that  if  the  foregoing  Plan  or  some- 
thing like  it  had  been  adopted  and  carried  into  Execution,  the  subsequent 
Separation  of  the  Colonies  from  the  Mother  Country  might  not  so  soon  have 
happened,  nor  the  Mischiefs  suffered  on  both  sides  have  occurred  perhaps 
during  another  Century.  For  the  Colonies,  if  so  united,  would  have  really 
been,  as  they  then  thought  themselves,  sufficient  to  their  own  Defence,  and 
being  trusted  with  it,  as  by  the  Plan,  an  Army  from  Britain,  for  that  purpose 
would  have  been  unnecessary;  the  Pretences  for  framing  the  Stamp  Act 
would  then  not  have  existed,  nor  the  other  projects  for  drawing  a  Revenue 
from  America  to  Britain  by  Act  of  Parliament,  which  were  the  Causes  of  the 
Breach  &  attended  with  such  terrible  Expense  of  Blood  and  Treasure;  so 
that  the  different  parts  of  the  Empire  might  still  have  remained  in  Peace  and 
Union.  But  the  Fate  of  this  Plan  was  singular.  For  then  after  many  Days 
thorough  Discussion  of  all  its  Parts  in  Congress  it  was  unanimously  agreed 
to,  and  Copies  ordered  to  be  sent  to  the  Assembly  of  each  province  for  Con- 
currence, and  one  to  the  Ministry  in  England  for  the  Approbation  of  the 
Crown.  The  Crown  disapproved  it,  as  having  placed  too  much  Weight  in 
the  Democratic  Part  of  the  Constitution;  and  every  Assembly,  as  having 
allowed  too  much  to  Prerogative.  So  it  was  totally  rejected." 

The  above,  as  printed  in  The  Museum,  omits  the  word  "Remark,"  but 
bears  date  at  the  bottom,  Philadelphia,  April  9,  1789.  It  was  written  by 
Dr.  Franklin  and  accompanied  the  following  letter:  — 

"Sir,  I  thank  you  for  the  Opportunity  you  propose  to  give  me  of  making 
Alterations  in  these  old  Pieces  of  mine  which  you  intend  to  republish  in  your 
Museum.  I  have  no  Inclination  to  make  any  change  in  them;  but  should  like 
to  see  Proof  Sheet,  supposing  your  Copies  may  possibly  be  incorrect,  and  if 
you  have  no  Objection,  you  may  follow  the  Albany  Plan  with  the  enclosed 
Remark  but  not  as  from  me. 

"  I  am,  Sir,  Your  humble  Servant 

(Signed)  "  B.  FRANKLIN."  l 

1  See  Smyth,  The  Life  and  Writings  of  Benjamin  Franklin,  iii,  226-227. 


IV 

DECLARATION  OF  RIGHTS  AND  LIBERTIES  MADE 
BY  STAMP  ACT  CONGRESS,  OCTOBER  19,   1765 

THE  members  of  this  Congress,  sincerely  devoted,  with  the  warmest     APPENDIX 
sentiments  of  affection  and  duty  to  his  Majesty's  person  and  govern-  IV 

ment,  inviolably  attached  to  the  present  happy  establishment  of  the 
Protestant  succession,{and  with  minds  deeply  impressed  by  a  sense  of 
the  present  and  impending  misfortunes  of  the  British  Colonies  on  this 
continent;  having  considered  as  maturely  as  time  will  permit,  the  cir- 
cumstances of  the  said  colonies,  esteem  it  our  indispensable  duty  to 
make  the  following  declarations  of  our  humble  opinion,  respecting  the 
most  essential  rights  and  liberties  of  the  colonists,  and  of  the  grievances 
under  which  they  labour,  by  reason  of  several  late  Acts  of  Parliament. 

I.  That  his  Majesty's  subjects  in  these  colonies  owe  the  same  allegi- 
ance to  the  Crown  of  Great  Britain,  that  is  owing  from  his  subjects 
born  within  the  realm,  and  all  due  subordination  to  that  august  body, 
the  Parliament  of  Great  Britain. 

II.  That  his  Majesty's  liege  subjects  in  these  colonies  are  intitled 
to  all  the  inherent  rights  and  liberties  of  his  natural  born  subjects, 
within  the  kingdom  of  Great  Britain. 

III.  That  it  is  inseparably  essential  to  the  freedom  of  a  people,  and 
the  undoubted  right  of  Englishmen,  that  no  Taxes  be  imposed  on  them 
but  with  their  own  consent,  given  personally,  or  by  their  representatives. 

IV.  That  the  people  of  these  colonies  are  not,  and,  from  their  local 
circumstances  cannot  be,  represented  in  the  House  of  Commons  in 
Great  Britain. 

V.  That  the  only  representatives  of  the  people  of  these  colonies  are 
persons  chosen  therein  by  themselves,  and  that  no  taxes  ever  have 
been,  or  can  be  constitutionally  imposed  on  them,  but  by  their  respect- 
ive legislatures. 

VI.  That  all  supplies  to  the  Crown  being  free  gifts  of  the  people,  it 
is  unreasonable  and  inconsistent  with  the  principles  and  spirit  of  the 
British  Constitution,  for  the  people  of  Great  Britain  to  grant  to  his 
Majesty  the  property  of  the  colonists. 

VII.  That  trial  by  jury  is  the  inherent  and  invaluable  right  of  every 
British  subject  in  these  colonies. 

VIII.  That  —  [the  Stamp  Act]  ...  by  imposing   taxes  on  the  in- 
habitants of  these  colonies,  and  the  said  Act,  and  several  other  Acts, 
by  extending  the  jurisdiction  of  the  courts  of  admiralty  beyond  its 
ancient  limits,  have  a  manifest  tendency  to  subvert  the  rights  and 
liberties  of  the  colonists. 

IX.  That  the  duties  imposed  by  several  late  Acts  of  Parliament,  from 


496  APPENDIX 

APPENDIX     the  peculiar  circumstances  of  these  colonies,  will  be  extremely  burthen- 
IV  some  and  grievous;  and  from  the  scarcity  of  specie,  the  payment  of 

them  absolutely  unpracticable. 

X.  That  as  the  profits  of  the  trade  of  these  colonies  ultimately  centre 
in  Great  Britain,  to  pay  for  the  manufactures  which  they  are  obliged 
to  take  from  thence,  they  eventually  contribute  very  largely  to  all 
supplies  granted  there  to  the  Crown. 

XI.  That  the  restrictions  imposed  by  several  late  Acts  of  Parliament 
on  the  trade  of  these  colonies,  will  render  them  unable  to  purchase  the 
manufactures  of  Great  Britain. 

XII.  That  the  increase,  prosperity,  and  happiness  of  these  colonies, 
depend  on  the  full  and  free  enjoyments  of  their  rights  and  liberties, 
and  an  intercourse  with  Great  Britain  mutually  affectionate  and  ad- 
vantageous. 

XIII.  That  it  is  the  right  of  the  British  subjects  in  these  colonies 
to  petition  the  King,  or  either  House  of  Parliament. 

Lastly,  That  it  is  the  indispensable  duty  of  these  colonies,  to  the  best 
of  sovereigns,  to  the  Mother  Country,  and  to  themselves,  to  endeavour 
by  a  loyal  and  dutiful  address  to  his  Majesty  and  humble  applications 
to  both  Houses  of  Parliament,  to  procure  the  repeal  of  the  Act  for  grant- 
ing and  applying  certain  stamp  duties,  of  all  clauses  of  any  other  Acts 
of  Parliament,  Whereby  the  jurisdiction  of  the  admiralty  is  ex- 
tended as  aforesaid,  and  of  the  other  late  Acts  for  the  restriction  of 
American  Commerce. 


DECLARATORY  ACT  OF  MARCH  18,  1766 

An  Act  for  the  better  securing  the  dependency  of  his  Majesty's  dominions 
in  America  upon  the  Crown  and  Parliament  of  Great  Britain 

WHEREAS  several  of  the  houses  of  representatives  in  his  Majesty's     APPENDIX 
colonies  and  plantations  in  America,  have  of  late,  against  law,  claimed  V 

to  themselves,  or  to  the  general  assemblies  of  the  same,  the  sole  and  ex- 
clusive right  of  imposing  duties  and  taxes  upon  his  Majesty's  subjects 
in  the  said  colonies  and  plantations;  and  have,  in  pursuance  of  such  claim, 
passed  certain  votes,  resolutions,  and  orders,  derogatory  to  the  legis- 
lative authority  of  Parliament,  and  inconsistent  with  the  dependency  of 
the  said  colonies  and  plantations  upon  the  Crown  of  Great  Britain:  .  .  . 
be  it  declared  .  .  .  That  the  said  colonies  and  plantations  in  America 
have  been,  are,  and  of  right  ought  to  be,  subordinate  unto,  and  depend- 
ent upon  the  Imperial  Crown  and  Parliament  of  Great  Britain;  and 
that  the  King's  Majesty,  by  and  with  the  advice  and  consent  of  the 
Lords  Spiritual  and  Temporal  and  Commons  of  Great  Britain,  in  Par- 
liament assembled,  had,  hath,  and  of  right  ought  to  have,  full  power 
and  authority  to  make  laws  and  statutes  of  sufficient  force  and  validity 
to  bind  the  colonies  and  people  of  America,  subjects  of  the  Crown  of 
Great  Britain,  in  all  cases  whatsoever. 

II.  And  be  it  further  declared  .  .  .  That  all  resolutions,  notes, 
orders,  and  proceedings,  in  any  of  the  said  colonies  or  plantations, 
whereby  the  power  and  authority  of  the  Parliament  of  Great  Britain, 
to  make  laws  and  statutes  as  aforesaid,  is  denied  or  drawn  into  ques- 
tion, are,  and  are  hereby  declared  to  be,  utterly  null  and  void  to  all 
intents  and  purposes  whatsoever. 


VI 

DECLARATION  OF  RIGHTS  AND  LIBERTIES  MADE 
BY  THE  FIRST  CONTINENTAL  CONGRESS,  OCTO- 
BER 14,  1774 

APPENDIX  WHEREAS,  since  the  close  of  the  last  war,  the  British  Parliament, 
VI  claiming  a  power  of  right  to  bind  the  people  of  America,  by  statute 

in  all  cases  whatsoever,  hath  in  some  acts  expressly  imposed  taxes  on 
them,  and  in  others,  under  various  pretences,  but  in  fact  for  the  pur- 
pose of  raising  a  revenue,  hath  imposed  rates  and  duties  payable  in 
these  colonies,  established  a  board  of  commissioners  with  unconstitu- 
tional powers,  and  extended  the  jurisdiction  of  courts  of  admiralty, 
not  only  for  collecting  the  said  duties,  but  for  the  trial  of  causes  merely 
arising  within  the  body  of  a  county. 

AND  WHEREAS,  in  consequence  of  other  statutes,  judges,  who  before 
held  only  estates  at  will  in  their  offices,  have  been  made  dependant  on 
the  Crown  alone  for  their  salaries,  and  standing  armies  kept  in  times 
of  peace: 

And  it  has  lately  been  resolved  in  Parliament,  that  by  force  of  a 
statute  made  in  the  thirty-fifth  year  of  the  reign  of  King  Henry  the 
Eighth,  colonists  may  be  transported  to  England,  and  tried  there  upon 
accusations  for  treasons,  and  misprisions,  or  concealments  of  treasons 
committed  in  the  colonies;  and  by  a  late  statute,  such  trials  have  been 
directed  in  cases  therein  mentioned. 

AND  WHEREAS,  in  the  last  session  of  Parliament,  three  statutes  were 
made;  "one,  intituled"  "An  Act  to  discontinue  in  such  manner  and  for 
such  time  as  are  therein  mentioned,  the  landing  and  discharging, 
lading,  or  shipping  of  goods,  wares  &  merchandise,  at  the  town,  and 
within  the  harbour  of  Boston,  in  the  province  of  Massachusetts-bay, 
in  North- America";  another,  intituled  "An  Act  for  the  better  reg- 
ulating the  government  of  the  province  of  the  Massachusetts-bay  in 
New-England;"  and  another  intituled  "An  Act  for  the  impartial 
administration  of  justice,  in  the  cases  of  persons  questioned  for  any 
act  done  by  them  in  the  execution  of  the  law,  or  for  the  suppression  of 
riots  and  tumults,  in  the  province  of  the  Massachusetts-bay  in  New 
England."  And  another  statute  was  then  made  "for  making  more 
effectual  provision  for  the  government  of  the  province  of  Quebec,  &c." 
All  which  statutes  are  impolitic,  unjust,  and  cruel,  as  well  as  uncon- 
stitutional, and  most  dangerous  and  destructive  of  American  rights. 

AND  WHEREAS,  Assemblies  have  been  frequently  dissolved,  contrary 
to  the  rights  of  the  people,  when  they  attempted  to  deliberate  on  griev- 
ances, and  their  dutiful,  humble,  loyal,  &  reasonable  petitions  to  the 


APPENDIX  499 

Crown  for  redress,  have  been  repeatedly  treated  with  contempt,  by  his     APPENDIX 
Majesty's  ministers  of  state:  VI 

The  good  people  of  the  several  Colonies  of  New-Hampshire,  Massa- 
chusetts-Bay—  Rhode-Island  and  Providence  plantations,  Connecticut, 
New- York,  New-Jersey,  Pennsylvania,  Newcastle,  Kent  and  Sussex  on 
Delaware,  Maryland,  Virginia,  North  Carolina,  and  South  Carolina, 
justly  alarmed  at  these  arbitrary  proceedings  of  Parliament  and  Admin- 
istration, have  severally  elected,  constituted,  and  appointed  deputies  to 
meet  and  sit  in  general  congress,  in  the  city  of  Philadelphia,  in  order  to 
obtain  such  establishment,  as  that  their  religion,  laws,  and  liberties  may 
not  be  subverted: 

Whereupon  the  deputies  so  appointed  being  now  assembled,  in  a  full 
and  free  representation  of  these  Colonies,  taking  into  their  most  seri- 
ous consideration,  the  best  means  of  attaining  the  ends  aforesaid,  do, 
in  the  first  place,  as  Englishmen,  their  ancestors,  in  like  cases  have 
usually  done,  for  asserting,  and  vindicating  their  rights  and  liberties, 
declare, 

That  the  inhabitants  of  the  English  Colonies  in  North  America  by 
the  immutable  laws  of  nature,  the  principles  of  the  English  Constitu- 
tion, and  the  several  charters  or  compacts,  have  the  following  Rights: 

Resolved,  N.  C.  D.  i.  That  they  are  entitled  to  life,  liberty,  &  pro- 
perty, and  they  have  never  ceded  to  any  sovereign  power  whatever,  a 
right  to  dispose  of  either  without  their  consent. 

Resolved,  N.  C.  D.  2.  That  our  ancestors  who  first  settled  these 
colonies,  were  at  the  time  of  their  emigration  from  the  Mother  Country, 
entitled  to  all  the  rights,  liberties,  and  immunities  of  free  and  natural- 
born  subjects,  within  the  realms  of  England. 

Resolved,  N.  C.  D.  3.  That  by  such  emigration  they  by  no  means 
forfeited,  surrendered,  or  lost  any  of  those  rights,  but  that  they  were, 
and  their  descendants  now  are,  entitled  to  the  exercise  and  enjoyment 
of  all  such  of  them,  as  their  local  and  other  circumstances  enable  them 
to  exercise  and  enjoy. 

Resolved,  4.  That  the  foundation  of  English  liberty,  and  of  all  free 
government,  is  a  right  in  the  people  to  participate  in  their  legislative 
Council:  and  as  the  English  colonists  are  not  represented,  and  from 
their  local  and  other  circumstances,  cannot  properly  be  represented  in 
the  British  Parliament,  they  are  entitled  to  a  free  and  exclusive  power  of 
legislation  in  their  several  provincial  legislatures,  where  their  right 
of  representation  can  alone  be  preserved,  in  all  cases  of  taxation  and 
internal  polity,  subject  only  to  the  negative  of  their  sovereign,  in  such 
manner  as  has  been  heretofore  used  and  accustomed.  But,  from 
the  necessity  of  the  case,  and  a  regard  to  the  mutual  interest  of  both 
countries,  we  cheerfully  consent  to  the  operation  of  such  Acts  of  the 
British  Parliament,  as  are,  bona  fide,  restrained  to  the  regulation  of 
our  external  commerce  for  the  purpose  of  securing  the  commercial 
advantages  of  the  whole  empire  to  the  Mother  country,  and  the  commer- 
cial benefits  of  its  respective  members;  excluding  every  idea  of  taxation, 
internal  or  external,  for  raising  a  revenue  on  the  subjects  in  America, 
without  their  consent. 


500  APPENDIX 

APPENDIX         Resolved,  N.  C.  D.  5.  That  the  respective  colonies  are  entitled  to  the 
VI  common  law  of  England,  and  more  especially  to  the  great  and  inestim- 

able privilege  of  being  tried  by  their  peers  of  the  vicinage,  according 
to  the  course  of  that  law. 

Resolved,  6.  That  they  are  entituled  to  the  benefit  of  such  of  the 
English  statutes  as  existed  at  the  time  of  their  colonization ;  and  which 
they  have,  by  experience,  respectively  found  to  be  applicable  to  their 
several  local  and  other  circumstances. 

Resolved,  N.  C.  D.  7.  That  these,  his  Majesty's  colonies,  are  likewise 
entituled  to  all  the  immunities  and  privileges  granted  &  confirmed  to 
them  by  royal  charters,  or  secured  by  their  several  codes  of  provincial 
laws. 

Resolved,  N.  C.  D.  8.  That  they  have  a  right  peaceably  to  assemble, 
consider  of  their  grievances,  and  petition  the  King;  and  that  all  pro- 
secutions, prohibitory  proclamations,  and  commitments  for  the  same, 
are  illegal. 

Resolved,  N.  C.  D.  9.  That  the  keeping  a  Standing  Army  in  these 
colonies,  in  times  of  peace,  without  the  consent  of  the  legislature  of 
that  colony,  in  which  such  army  is  kept,  is  against  law. 

Resolved,  N.  C.  D.  10.  It  is  indispensably  necessary  to  good  govern- 
ment, and  rendered  essential  by  the  English  Constitution,  that  the 
constituent  branches  of  the  legislature  be  independent  of  each  other; 
that,  therefore,  the  exercise  of  legislative  power  in  several  colonies, 
by  a  council  appointed,  during  pleasure,  by  the  Crown,  is  unconstitu- 
tional, dangerous,  and  destructive  to  the  freedom  of  American  legis- 
lation. 

All  and  each  of  which  the  aforesaid  deputies,  in  behalf  of  themselves 
and  their  constituents,  do  claim,  demand,  and  insist  on,  as  their  indub- 
itable rights  and  liberties;  which  cannot  be  legally  taken  from  them, 
altered  or  abridged  by  any  power  whatever,  without  their  own  consent, 
by  their  representatives  in  their  several  provincial  legislatures. 

In  the  course  of  our  inquiry,  we  find  many  infringements  and  viola- 
tions of  the  foregoing  rights,  which,  from  an  ardent  desire  that  har- 
mony and  mutual  intercourse  of  affection  and  interest  may  be  restored, 
we  pass  over  for  the  present,  and  proceed  to  state  such  acts  and  meas- 
ures as  have  been  adopted  since  the  last  war,  which  demonstrate  a 
system  formed  to  enslave  America. 

Resolved,  N.  C.  D.,  That  the  following  Acts  of  Parliament  are  in- 
fringements and  violations  of  the  rights  of  the  colonists,  and  that  the 
repeal  of  them  is  essentially  necessary  in  order  to  restore  harmony  be- 
tween Great-Britain  and  the  American  colonies,  viz. :  — 

The  several  Acts  of  4  Geo.  3.  ch.  15,  &  ch.  34.  —  5  Geo.  3.  ch.  25  — 
6  Geo.  3.  ch.  52.  —  7  Geo.  3.  ch.  41,  &  ch.  46  —  8  Geo.  3.  ch.  22, 
which  impose  duties  for  the  purpose  of  raising  a  revenue  in  America, 
extend  the  powers  of  the  admiralty  courts  beyond  their  ancient  limits, 
deprive  the  American  subject  of  trial  by  jury,  authorize  the  judges' 
certificate  to  indemnify  the  prosecutor  from  damages,  that  he  might 
otherwise  be  liable  to,  requiring  oppressive  security  from  a  claimant  of 


APPENDIX  501 

ships  and  goods  seized,  before  he  shall  be  allowed  to  defend  his  pro-     APPENDIX 
perty,  and  are  subversive  of  American  rights.  VI 

Also  the  12  Geo.  3.  ch.  24,  entituled  "An  Act  for  the  better  securing 
his  Majesty's  dock-yards,  magazines,  ships,  ammunition,  and  stores," 
which  declares  a  new  offence  in  America,  and  deprives  the  American 
subject  of  a  constitutional  trial  by  a  jury  of  the  vincinage,  by  author- 
izing the  trial  of  any  person,  charged  with  the  committing  any  offence 
described  in  the  said  Act,  out  of  the  realm,  to  be  indicted  and  tried 
for  the  same  in  any  shire  or  county  within  the  realm.  Also  the  three 
Acts  passed  in  the  last  session  of  Parliament,  for  stopping  the  port 
and  blocking  up  the  harbour  of  Boston,  for  altering  the  charter  & 
government  of  the  Massachusetts-bay,  and  that  which  is  entituled 
"An  Act  for  the  better  administration  of  Justice,"  &c. 

Also  the  Act  passed  in  the  same  session  for  establishing  the  Roman 
Catholick  Religion  in  the  province  of  Quebec ;  abolishing  the  equitable 
system  of  English  laws,  and  erecting  a  tyranny  there,  to  the  great 
danger,  from  so  total  a  dissimilarity  of  Religion,  law,  and  government, 
of  the  neighbouring  British  colonies,  by  the  assistance  of  whose  blood 
and  treasure  the  said  country  was  conquered  from  France. 

Also  the  Act  passed  in  the  same  session  for  the  better  providing 
suitable  quarters  for  officers  and  soldiers  in  his  Majesty's  service  in 
North-America. 

Also,  that  the  keeping  a  standing  army  in  several  of  these  colonies,  in 
time  of  peace,  without  the  consent  of  the  legislature  of  that  colony 
in  which  such  army  is  kept,  is  against  law. 

To  these  grievous  acts  and  measures,  Americans  cannot  submit, 
but  in  hopes  that  their  fellow  subjects  in  Great-Britain  will,  on  a  re- 
vision of  them,  restore  us  to  that  state  in  which  both  countries  found 
happiness  and  prosperity,  we  have  for  the  present  only  resolved  to 
pursue  the  following  peacable  measures:  — 

1st.  To  enter  into  a  non-importation,  non-consumption,  and  non- 
exportation  agreement  or  association. 

2.  To  prepare  an  address  to  the  people  of  Great-Britain,  and  a 
Memorial  to  the  inhabitants  of  British  America,  & 

3.  To  prepare  a  loyal  address  to  his  Majesty;  agreeable  to  Resolu- 
tions already  entered  into. 


VII 

THE    MECKLENBURG    DECLARATION    OF    INDE- 
PENDENCE  OF   MAY  31,  1775 

THE  MECKLENBURG  RESOLVES  AS  THEY  APPEARED  IN  THE 
NORTH  CAROLINA  GAZETTE  OF  JUNE  I6,1  1775,  NO.  323, 
PRINTED  WEEKLY  AT  NEW  BERN,  NORTH  CAROLINA 

APPENDIX         MR-  WILLIAM  HENRY  HOYT,  in  his  work  entitled  "The  Mecklenburg 
VII  Declaration  of  Independence;  a  study  of  evidence  showing  that  the 

alleged  early  Declaration  of  Independence  by  Mecklenburg  County, 
North  Carolina,  on  May  20,  1775,  is  spurious,"  tells  us  at  p.  275  that 
"the  North  Carolina  Gazette  of  June  16,  1775,  from  which  the  foregoing 
resolves  are  copied,  was  recently  found  by  Mr.  Edward  P.  Moses,  of 
Raleigh,  in  the  library  of  Hayes,  the  residence  of  Samuel  Johnston,  the 
Revolutionary  statesman,  near  Edenton,  North  Carolina.  Mr.  Moses 
found  with  it  a  letter  of  Richard  Cogdell,  chairman  of  the  Craven  County 
Committee,  dated  New  Bern,  June  18,  1775.  The  newspaper  was  un- 
doubtedly enclosed  in  this  letter,  which  bears  internal  evidence  of 
having  been  addressed  to  Richard  Caswell,  at  Philadelphia.  Cogdell 
writes  that  "  the  Craven  Committee  has  put  into  execution  measures 
similar  to  those  recommended  by  Caswell.  'We  have  Transmitted  the 
Copy  of  Our  proceedings, '  he  says,  '  to  every  County  and  Town  in  the 
Province,  and  have  had  the  pleasure  to  hear  many  Counties  have 
adopted  the  same.  Our  County  of  Craven  have  had  their  private 
musters  and  Elected  their  Officers.  .  .  .  You  '1  Observe  the  Mecklen- 
burg Resolves,  exceeds  all  other  Committees,  or  the  Congress  itself. 
I  Send  you  the  paper,  wherein  they  are  inserted  as  I  hope  this  will 
come  Soon  to  hand." 

1  These  same  resolves,  with  a  few  "Charles-Town,"  South  Carolina, 
differences  in  minor  details,  arising,  They  also  appeared  at  Wilmington, 
no  doubt,  from  imperfect  printing,  North  Carolina,  on  June  23,  1775, 
had  appeared  on  Tuesday,  June  13,  in  the  Cape  Fear  Mercury,  sent  in 
1775,  in  the  South  Carolina  Gazette  Governor  Martin's  duplicate  let- 
and  Country  Journal  of  that  date,  ter  of  June  30,  1775,  to  Lord  Dart- 
conducted  by  Charles  Crouch,  a  mouth;  and  in  part,  in  the  Northern 
sound  Whig  and  published  in  papers. 


APPENDIX  503 

THE    MECKLENBURG    RESOLVES    AS    PRINTED    IN     THE    NORTH 
CAROLINA  GAZETTE   OF  JUNE    l6,    1775,  NO.  323 

CHARLOTTE  TOWN, 

MECKLENBURG  COUNTY, 

May  31. 

This  Day  the  Committee  met,  and  passed  the  following  Resolves.          APPENDIX 
WHEREAS,  by  an  Address  presented  to  his  Majesty  by  both  Houses          VII 
of  Parliament  in  February  last,  the  American  Colonies  are  declared 
to  be  in  a  State  of  actual  Rebellion,  we  conceive  that  all  Laws  and  Com- 
missions confirmed  by,  or  drived  from,  the  Authority  of  the  King,  or 
Parliament,  are  annulled  and  vacated,  and  the  former  civil  Constitu- 
tion of  these  Colonies  for  the  present  wholly  suspended.    To  provide 
in  some  Degree  for  the  Exigencies  of  the  County  in  the  present  alarm- 
ing Period,  we  deem  it  proper  and  necessary  to  pass  the  following  re- 
solves, viz. : — 

1.  That  all  Commissions,  civil  and  Military,  heretofore  granted  by 
the  Crown  to  be  exercised  in  these  Colonies,  are  null  and  void,  and  the 
Constitution  of  each  particular  Colony  wholly  suspended. 

2.  That  the  Provincial  Congress  of  each  Province,  under  the  Direc- 
tion of  the  Great  Continental  Congress,  is  invested  with  all  legislative 
and  executive  Powers  within  their  respective  Provinces;  and   that 
no  other  Legislative  or  Executive  does  or  can  exist,  at  this  Time,  in 
any  of  these  Colonies. 

3.  As  all  former  Laws  are  now  suspended  in  this  Province,  and  the 
Congress  have  not  yet  provided  others,  we  judge  it  necessary,  for  the 
better  Preservation  of  good  Order,  to  form  certain  Rules  and  Regula- 
tions for  the  internal  Government  of  this  County,  until  Laws  shall 
be  provided  for  us  by  the  Congress. 

4.  That  the  Inhabitants  of  this  County  do  meet  on  a  certain  Day 
appointed  by  this  Committee  and  having  formed  themselves  into 
nine  Companies,  to  wit,  eight  for  the  County,  and  one  for  the  town 
of  Charlotte,  do  choose  a  Colonel,  and  other  Military  Officers,  who 
shall  hold  and  exercise  their  several  Powers  by  Virtue  of  this  Choice, 
and  independent  of  Great-Britain,  and  former  Constitution  of  this 
Province. 

5.  That  for  the  better  preservation  of  the  Peace  and  Administration 
of  Justice,  each  of  these  Companies  do  choose,  from  their  own  Body,  two 
discreet  Freeholders,  who  shall  be  impowered  each  by  himself,  and 
singly,  to  decide  and  determine  all  Matters  of  Controversy  arising 
within  the  said  Company  under  the  Sum  of  Twenty  Shillings,  and 
jointly  and  together  all  Controversies  under  the  Sum  of  Forty  Shil- 
lings, yet  so  as  their  Decisions  may  admit  of  Appeals  to  the  Conven- 
tion of  the  Select  Men,  of  the  Whole  County;  and  also,  that  any  one 
of  these  shall  have  Power  to  examine,  and  commit  to  Confinement, 
Persons  accused  of  Petit  Larceny. 

6.  That  those  two  Select  Men,  thus  chosen,  do,  jointly  and  together, 


504  APPENDIX 

APPEND ix     choose  from  the  Body  of  their  particular  Company  two  Persons,  properly 
VII  qualified  to  serve  as  Constables,  who  may  assert  them  in  the  Execu- 

tion of  their  Office. 

7.  That  upon  the  Complaint  of  any  Person  to  either  of  these  Select 
Men,  he  do  issue  his  Warrant,  directed  to  the  Constable,  command- 
ing him  to  bring  the  Aggressor  before  him,  or  them,  to  answer  the  said 
Complaint. 

8.  That  these  eighteen  Select  Men,  thus  appointed,  do  meet  every 
third  Tuesday  in  January,  April,  July,  and  October,  at  the  Court- 
House  in  Charlotte,  to  hear  and  determine  all  Matters  of  Controversy 
for  Sums  exceeding  Forty  Shillings;  also  Appeals:  And  in  Cases  of 
Felony,  to  commit  the  Person  or  Persons  convicted  thereof  to  close 
confinement,  until  the  Provincial  Congress  shall  provide  and  establish 
Laws  and  Modes  of  Proceeding  in  such  cases. 

9.  That  these  eighteen  Select  Men,  thus  convened,  do  choose  a  Clerk 
to  record  the  Transactions  of  the  said  Convention;  and  that  the  said 
Clerk,  upon  the  Application  of  any  Person  or  Persons  aggrieved  do 
issue  his  Warrant  to  one  of  the  Constables,  to  summons  and  warn  the 
said  Offender  to  appear  before  the  Convention  at  their  next  sitting,  to 
answer  the  aforesaid  Complaint. 

10.  That  any  Person  making  Complaint  upon  Oath  to  the  Clerk,  or 
any  Member  of  the  Convention,  that  he  has  Reason  to  suspect  that  any 
Person  or  Persons  indebted  to  him  in  a  Sum  above  Forty  Shillings,  do 
intend  clandestinely  to  withdraw  from  the  County  without  paying 
such  a  Debt;  the  Clerk,  or  such  Member,  shall  issue  his  Warrant  to  the 
Constable,  commanding  him  to  take  the  said  Person  or  Persons  into 
safe  Custody,  until  the  next  sitting  of  the  Convention. 

1 1 .  That  when  a  Debtor  for  a  Sum  below  Forty  Shillings  shall  ab- 
scond and  leave  the  County,  the  Warrant  granted  as  aforesaid  shall 
extend  to  any  Goods  or  Chattels  of  the  said  Debtor  as  may  be  found, 
and  such  Goods  or  Chattels  be  seized  and  held  in  Custody  by  the'Con- 
stable  for  the  space  of  Thirty  Days;  in  which  Term  if  the  Debtor  fails 
to  return  and  discharge  the  Debt,  the  Constable  shall  return  the  War- 
rant to  one  of  the  Select  Men  of  the  Company  where  the  Goods  and 
Chattels  were  found,  who  shall  issue  Orders  to  the  Constable  to  sell 
such  a  Part  of  the  said  goods  as  shall  amount  to  the  Sum  due;  that 
when  the  Debt  exceeds  Forty  Shillings,  the  Return  shall  be  made  to  the 
Convention,  who  shall  issue  the  Orders  for  Sale. 

12.  That  Receivers  and  Collectors  for  Quitrents,  Public  &  County 
Taxes,  do  pay  the  same  into  the  Hands  of  the  Chairman  of  this  Com- 
mittee, to  be  by  them  disbursed  as  the  public  Exigencies  may  require. 
And  that  such  Receivers  and  Collectors  proceed  no  farther  in  their 
Office  until  they  be  approved  of  by,  and  have  given  to  this  Committee 
good  &  sufficient  Security  for  a  faithful  Return  of  such  Monies  when 
collected. 

13.  That  the  Committee  be  accountable  to  the  County  for  the  Ap- 
plication of  all  Monies  received  from  such  Officers. 

14.  That  all  these  Officers  hold  their  Commissions  during  the  Pleas- 
ure of  their  respective  Constituents. 


APPENDIX  505 

15.  That  this  Committee  will  sustain  all  Damages  that  may  ever     APPENDIX 
hereafter  accrue  to  all,  or  any  of  these  Officers  thus  appointed,  and  thus          VII 
acting,  on  Account  of  their  Obedience  and  Conformity  to  these  Re- 
solves. 

1 6.  That  whatever  Person  shall  hereafter  receive  a  Commission 
from  the  Crown,  or  attempt  to  exercise  any  such  Commission  hereto- 
fore received,  shall  be  deemed  an  Enemy  to  his  Country;  and  upon 
Information  being  made  to  the  Captain  of  the  Company  where  he 
resides,  the  said  Captain  shall  cause  him  to  be  apprehended,  and  con- 
veyed before  the  two  Select  Men  of  the  said  Company,  who,  upon  Proof 
of  the  Fact,  shall  commit  him  the  said  Offender  into  safe  Custody,  until 
the  next  sitting  of  the  Convention,  who  shall  deal  with  him  as  Prud- 
ence may  direct. 

17.  That  any  Person  refusing  to  yield  Obedience  to  the  above  Re- 
solves shall  be  deemed  equally  criminal,  and  liable  to  the  same  Pun- 
ishments as  the  Offenders  above  last  mentioned. 

1 8.  That  these  Resolves  be  in  full  Force  and  Virtue,  until  Instruc- 
tions from  the  General  Congress  of  this  Province,  regulating  the  Juris- 
prudence of  this  Province,  shall  provide  otherwise,  or  the  Legislative 
Body  of  Great  Britain  resign  its  unjust  and  arbitrary  Pretensions  with 
respect  to  America. 

19.  That  the  several  Militia  Companies  in  this  County  do  provide 
themselves  with  proper  Arms  and  Accuetrements,  and  hold  themselves 
in  constant  Readiness  to  execute  the  Commands  and  Directions  of  the 
Provincial  Congress,  and  of  this  Committee. 

20.  That  this  Committee  do  appoint  Colonel  Thomas  Polk,  and  Dr 
Joseph  Kennedy,  to  purchase  300  Ib.  of  powder,  600  Ib.  of  lead,  and 
1000  Flints;  and  deposit  the  same  in  some  safe  place,  hereafter  to  be 
appointed  by  the  Committee. 

Signed  by  Order  of  the  Committee. 

E.  H.  BREVARD, 
Clerk  of  the  Committee. 


THE  NOW  DISCREDITED  DRAFT  OF  A  DECLARATION  OF  INDE- 
PENDENCE PURPORTING  TO  HAVE  BEEN  MADE  ON  MAY  2O, 
1775,  BY  A  CONVENTION  HELD  IN  CHARLOTTE,  MECKLENBURG 
COUNTY,  NORTH  CAROLINA,  ON  THAT  DAY 

When  in  the  winter  of  1818-19  the  subject  was  a  topic  of  conversa- 
tion at  Washington,  Senator  Nathaniel  Macon  and  William  David- 
son, the  Representative  from  the  Mecklenburg  District,  wrote  to  per- 
sons in  that  section  of  the  country  for  information  relative  to  the 
matter.  Davidson  received  from  Dr.  Joseph  McKnitt  Alexander  a  full 
account  of  the  disputed  event,  which  he  said  he  had  copied  from  papers 
left  by  his  father,  John  McKnitt  Alexander.  William  B.  Alexander, 
the  brother  of  Dr.  Alexander,  wrote  to  Macon  on  February  7,  1819, 
that  the  latter  had  furnished  Davidson  with  all  that  could  be  found. 


5o6  APPENDIX 

APPENDIX     "Nearly  all  of  my  father's  papers,"  he  said,  "were  burned  in  the  spring 
VII  of  1800,  which  destroyed  the  papers  now  wanted,  as  I  believe  he  acted 

as  the  secretary  to  the  Committee  that  declared  independence  for  this 
County  in  1775."  Macon,  after  endeavouring  to  procure  information 
to  verify  statements  in  the  document,  thus  received  by  Davidson  from 
Dr.  Alexander,  sent  it  with  an  old  proclamation  that  William  B.  Alex- 
ander had  found  among  his  father's  papers  to  the  Editor  of  the  Ra- 
leigh Register  and  North  Carolina  Gazette,  published  in  Raleigh,  North 
Carolina.  It  appears  in  the  issue  of  Friday  April  30,  1819  (vol.  xx,  no. 
1023),  as  follows:  — 4 

DECLARATION   OF  INDEPENDENCE 

It  is  not  probably  known  to  many  of  our  readers,  that  the  citizens 
of  Mecklenburg  County,  in  this  State,  made  a  Declaration  of  Inde- 
pendence more  than  a  year  before  Congress  made  theirs.  The  follow- 
ing Document  on  the  subject  has  lately  come  to  the  hands  of  the  Edi- 
tor from  unquestionable  authority,  and  is  published  that  it  may  go 
down  to  posterity. 

NORTH  CAROLINA,  MECKLENBURG  COUNTY 
May  20,  1775 

In  the  spring  of  1775,  the  leading  characters  of  Mecklenburg  County, 
stimulated  by  that  enthusiastic  patriotism  which  elevates  the  mind 
above  considerations  of  individual  aggrandisement,  and  scorning  to 
shelter  themselves,  from  the  impending  storm  by  submission  to  lawless 
power,  &c.  &c.,  held  several  detached  meetings,  in  each  of  which  the  indi- 
vidual sentiments  were  "  that  the  cause  of  Boston  was  the  cause  of  all " ; 
that  their  destinies  were  indissolubly  connected  with  those  of  their 
Eastern  fellow-citizens  —  and  that  they  must  either  submit  to  all  the 
impositions  which  an  unprincipled,  and  to  them  an  unrepresentative  Par- 
liament might  impose  —  or  support  their  brethren  who  were  doomed  to 
sustain  the  first  shock  of  that  power,  which,  if  successful  there,  would  ul- 
timately overwhelm  all  in  the  common  calamity.  Conformably  to  these 
principles,  Col.  Adam  Alexander,  through  solicitations,  issued  an  order 
to  each  Captain's  Company  in  the  County  of  Mecklenburg  (then  com- 
prising the  present  County  of  Cabarrus),  directing  each  Militia  Com- 
pany to  elect  two  persons,  and  delegate  to  them  ample  power  to 
devise  ways  and  means  to  aid  and  assist  their  suffering  brethren  in 
Boston,  and  also  generally  to  adopt  measures  to  extricate  themselves 
from  the  impending  storm,  &  to  secure  unimpaired  their  inalienable 
rights,  privileges,  and  liberties  from  the  dominant  grasp  of  British 
imposition  and  tyranny. 

In  conforming  to  said  Order,  on  the  iQth  of  May,  1775,  the  said  dele- 
gation met  in  Charlotte,  vested  with  unlimited  powers;  at  which  time 
official  news,  by  express,  arrived  of  the  Battle  of  Lexington  on  that 
day  of  the  preceding  month. 

Every  delegate  felt  the  value  &  importance  of  the  prize,  &  the  aw- 


APPENDIX  507 

ful  &  solemn  crisis  which  had  arrived,  —  every  bosom  swelled  with     APPENDIX 
indignation  at  the  malice,  inveteracy,  and  insatiable  revenge  developed          VII 
in  the  late  attack  at  Lexington.    The  universal  sentiment  was:  let 
us  not  flatter  ourselves  that  popular  harangues  —  or  resolves;  that 
popular  vapor  will  avert  the  storm,  or  vanquish  our  common  enemy 
—  let  us  deliberate  —  let  us  calculate  the  issue  —  the  probable  result; 
and  then  let  us  act  with  energy  as  brethren  leagued  to  preserve  our 
property  —  our  lives  —  and  what  is  still  more  endearing,  the  liberties 
of  America. 

Abraham  Alexander  was  then  elected  Chairman,  and  John  McKnitt 
Alexander,  Clerk.  After  a  free  and  full  discussion  of  the  various  ob- 
jects for  which  the  delegation  had  been  convened,  it  was  unanimously 
Ordained  — 

1.  Resolved,  That  whosoever  directly  or  indirectly  abetted,  or  in  any 
way,  form  or  manner  countenanced  the  unchartered  and  dangerous 
invasion  of  our  rights,  as  claimed  by  Great-Britain,  is  an  enemy  to 
this  Country,  —  to  America,  —  and  to  the  inherent  and  inalienable 
rights  of  man. 

2.  Resolved,  That  we  the  citizens  of  Mecklenburg  County  do  hereby 
dissolve  the  political  bands  which  have  connected  us  to  the  Mother 
Country,  and  hereby  absolve  ourselves  from  all  allegiance  to  the  Brit- 
ish Crown,  and  abjure  all  political  connection,  contract  or  association 
with  that  Nation,  who  have  wantonly  trampled  on  our  rights  and  liber- 
ties —  and  inhumanly  shed  the  innocent  blood  of  American  patriots 
at  Lexington. 

3.  Resolved,  That  we  do  hereby  declare  ourselves  a  free  and  inde- 
pendent People,  are  and  of  right  ought  to  be,  a  sovereign  and  self- 
governing  Association,  under  the  control  of  no  power  other  than  that 
of  our  God  and  the  General  Government  of  the  Congress;  to  the  main- 
tenance of  which  independence,  we  solemnly  pledge  to  each  other  our 
mutual  co-operation,  our  lives,  our  fortunes,  and  our  most  sacred  honor. 

4.  Resolved,  That  as  we  now  acknowledge  the  existence  and  control 
of  no  law  or  legal  officer,  civil  or  military,  within  this  County,  we  do 
hereby  ordain  and  adopt,  as  a  rule  of  life,  all,  each  and  every  of  our 
former   laws,  —  wherein   nevertheless,    the   Crown   of   Great-Britain 
never  can  be  considered  as  holding  rights,  privileges,  immunities  or 
authority  therein. 

5.  Resolved,  That  it  is  also  further  decreed,  that  all,  each  and  every 
military  officer  in  this  County  is  hereby  re-instated  to  his  former  com- 
mand and  authority,  he  acting  conformably  to  these  regulations. 
And  that  every  member  present  of  this  delegation  shall  henceforth  be 
a  civil  officer,  viz.:  a  Justice  of  the  Peace,  in  the  character  of  a  "Com- 
mittee man,"  to  issue  process,  hear  and  determine  all  matters  of  con- 
troversy, according  to  said  adopted  laws,  and  to  preserve  peace,  and 
union,  and  harmony  in  said  County,  —  and  to  use  every  exertion  to 
spread  the  love  of  country  and  fire  of  freedom  throughout  America, 
until  a  more  general  and  organized  government  be  established  in  this 
province. 


508  APPENDIX 

APPENDIX         A  number  of  bye-laws  were  also  added,  merely  to  protect  the  Asso- 
VII  ciation  from  confusion  and  to  regulate  their  general  conduct  as  citizens. 

After  sitting  in  the  Courthouse  all  night,  neither  sleepy,  hungry,  nor 
fatigued,  and  after  discussing  every  paragraph,  they  were  all  passed, 
sanctioned  and  declared  unanimously,  about  2  o'clock,  A.  M.  May  20. 
In  a  few  days  a  deputation  of  said  delegation  convened,  when  Capt. 
James  Jack  of  Charlotte  was  deputed  as  express  to  the  Congress  at 
Philadelphia,  with  a  copy  of  said  Resolves  and  Proceedings,  together 
with  a  letter  addressed  to  our  three  Representatives  there,  viz:  Richard 
Caswell,  Wm.  Hooper  and  Joseph  Hughes  —  under  express  injunction, 
personally,  and  through  the  state  representation,  to  use  all  possible 
means  to  have  said  proceedings  sanctioned  and  approved  by  the  Gen- 
eral Congress.  On  the  return  of  Capt.  Jack,  the  delegation  learned  that 
their  proceedings  were  individually  approved  by  the  members  of  Con- 
gress, but  that  it  was  deemed  premature  to  lay  them  before  the  House. 
A  joint  letter  from  said  three  members  of  Congress  was  also  received, 
complimentary  of  the  zeal  in  the  common  cause,  and  recommending 
perseverance,  order  and  energy. 

The  subsequent  harmony,  unanimity  and  exertion  in  the  cause  of 
liberty  and  independence,  evidently  resulting  from  these  regulations, 
and  the  continued  exertion  of  said  delegation,  apparently  tranquilised 
this  section  of  the  State,  and  met  with  the  concurrence  and  high  appro- 
bation of  the  Council  of  Safety,  who  held  their  sessions  at  Newbern  and 
Wilmington  alternately,  and  who  confirmed  the  nomination  and  acts 
of  the  delegation  in  their  official  capacity. 

From  this  delegation  originated  the  Court  of  Enquiry  of  this  County, 
who  constituted  and  held  their  meetings  regularly  at  Charlotte  at  Col. 
James  Harris's  and  at  Col.  Phifer's  alternately  one  week  at  each  place. 
It  was  a  civil  Court  founded  on  military  process.  Before  this  judicature 
all  suspicious  persons  were  made  to  appear,  who  were  formally  tried 
and  banished,  or  continued  under  guard.  Its  jurisdiction  was  as  un- 
limited as  toryism,  and  its  decrees  as  final  as  the  confidence  and  patri- 
otism of  the  County.  Several  were  arrested  and  brought  before  them 
from  Lincoln,  Rowan  and  the  adjacent  counties  — 

[The  foregoing  is  a  true  copy  of  the  papers  on  the  above  subject, 
left  in  my  hands  by  John  M'Knitt  Alexander,  dec'd;  I  find  it  men- 
tioned on  file  that  the  original  book  was  burned  April,  1800.  That  a 
copy  of  the  proceedings  was  sent  to  Hugh  Williamson  in  New  York, 
then  writing  a  History  of  North-Carolina,  and  that  a  copy  was  sent 
to  Gen.  W.  R.  Davie. 

J.  McKNiTT.] 

Dr.  Joseph  McKnitt  Alexander  usually  omitted  his  surname  in  his 
signature  because  of  the  commonness  of  the  name  Alexander  in  Mecklen- 
burg, and  was  frequently  spoken  of  and  addressed  as  "J.  McKnitt." 
(Gov.  Graham's  Address,  29-30.) 

Everything  that  could  possibly  be  said  in  favor  of  the  genuineness 
of  the  foregoing  paper  was  said  in  The  Address  on  the  Mecklenburg  De- 


APPENDIX  509 

claration  of  Independence,  delivered  at  Charlotte,  February  4,  1875,     APPENDIX 

by  the  Hon.  Wm.  A.  Graham,  one  of  the  most  famous  statesmen  and          VII 

one  of  the  loftiest  characters  North  Carolina  ever  gave  to  the  nation. 

In  1895  Dr.  George  W.  Graham,  the  worthy  and  able  son  of  a  noble 

sire,  published  an  address  entitled  Why  North  Carolinians  believe  in 

the  Mecklenburg  Declaration  of  Independence,  a  paper  elaborated  by  him 

in  his  later  work,  The  Mecklenburg  Declaration  of  Independence,  May 

20,  1775,  and  the  Lives  of  its  Signers  (1905).    But  despite  the  ability 

and  character  of  its  advocates,  the  case  has  failed  not  only  because 

of  the  lack  of  contemporaneous  documentary  evidence,  but  because  of 

many  other  circumstances  whose  discussion  has  swelled  into  quite  a 

literature.  For  a  full  statement  see  the  book  entitled  The  Mecklenburg 

Declaration  of  Independence,  by  Wm.  Henry  Hoyt,  A.M.,  1907.    In  1908 

appeared  volume  I  of  a  History  of  North  Carolina,  by  Samuel  A'Court 

Ashe,  a  native  writer,  who  is  producing  perhaps  the  most  complete  and 

exhaustive  history  of  North  Carolina  so  far  written.  In  chapter  xxvi 

(p.  449)  is  contained  the  following  conclusion  which  should  be  accepted 

as  the  last  word  on  the  subject:  "These  and  other  circumstances  lead 

to  the  belief  that  inasmuch  as  none  of  the  witnesses  speak  of  two  public 

meetings,  at  which  Colonel  Polk  proclaimed  independence,  there  was 

but  one  such  meeting;  and  the  Resolutions  which  he  read  were  those  of 

May  3ist,  published  on  June  I3th  in  Charleston;  June  i6th  in  New 

Bern,  and  June  23d  at  Wilmington,  and  in  part,  injthe  Northern  papers. 

If  there  was  any  other  public  meeting,  it  is  not  mentioned  by  any  one. 

If  there  were  any  other  Resolutions  ever  adopted  and  proclaimed,  no 

copy  was  preserved." 


VIII 

VIRGINIA'S  BILL  OF  RIGHTS  OF 

APPENDIX  A  DECLARATION  of  rights  made  by  the  representatives  of  the  good 
VIII  people  of  Virginia,  assembled  in  full  and  free  convention;  which  rights 
do  pertain  to  them  and  their  posterity  as  the  basis  and  foundation  of 
government. 

SECTION  i.  That  all  men  are  by  nature  equally  free  and  independ- 
ent, and  have  certain  inherent  rights,  of  which,  when  they  enter  into 
a  state  of  society,  they  cannot,  by  any  compact,  deprive  or  divest  their 
posterity ;  namely,  the  enjoyment  of  life  and  liberty,  with  the  means  of 
acquiring  and  possessing  property,  and  pursuing  and  obtaining  happi- 
ness and  safety. 

SEC.  2.  That  all  power  is  vested  in,  and  consequently  derived  from, 
the  people;  that  magistrates  are  their  trustees  and  servants,  and  at  all 
times  amenable  to  them. 

SEC.  3.  That  government  is,  or  ought  to  be,  instituted  for  the  com- 
mon benefit,  protection,  and  security  of  the  people,  nation,  or  com- 
munity; of  all  the  various  modes  and  forms  of  government,  that  is 
best  which  is  capable  of  producing  the  greatest  degree  of  happiness 
and  safety,  and  is  most  effectually  secured  against  the  danger  of 
maladministration;  and  that,  when  any  government  shall  be  found  in- 
adequate or  contrary  to  these  purposes,  a  majority  of  the  community 
hath  an  indubitable,  inalienable,  and  indefensible  right  to  reform,  alter, 
or  abolish  it,  in  such  manner  as  shall  be  judged  most  conducive  to  the 
public  weal. 

SEC.  4.  That  no  man,  or  set  of  men,  are  entitled  to  exclusive  or 
separate  emoluments  or  privileges  from  the  community,  but  in  con- 
sideration of  public  services;  which,  not  being  descendible,  neither 
ought  the  offices  of  magistrate,  legislator,  or  judge  to  be  hereditary. 

SEC.  5.  That  the  legislative  and  executive  powers  of  the  State 
should  be  separate  and  distinct  from  the  judiciary,2  and  that  the 

1  This  declaration  of  rights  was  executive,  and  judiciary  department 
framed  by  a  convention,  composed  shall  be  separate  and  distinct,  so 
of  forty-five  members  of  the  colonial  that  neither  exercise  the  powers 
house  of  burgesses,  which  met  at  properly  belonging  to  the  other." 
Williamsburgh,  May  6,  1776,  and  These  are  the  first  complete  dog- 
adopted  this  declaration  June  12,  matic  statements  as  to  the  division 
1776.  The  draftsman  was  George  of  powers  ever  incorporated  in  a  for- 
Mason.  mal  document.  See  Resolve  10  of 

*  In    the    constitution    adopted  the  Declaration   of  Rights   of  the 

June  29,  1776,  by  the  convention  First  Continental  Congress,  Octo- 

that  issued  this  bill  of  rights,  it  is  ber,  1776. 
provided    that    "The    legislative, 


APPENDIX  511 

members  of  the  two  first  may  be  restrained  from  oppression,  by  feel-     APPENDIX 

ing  and  participating  the  burdens  of  the  people,  they  should,  at  fixed         VIII 

periods,  be  reduced  to  a  private  station,  return  into  that  body  from 

which  they  were  originally  taken,  and  the  vacancies  be  supplied  by 

frequent,  certain,  and  regular  elections,  in  which  all  or  any  part  of  the 

former  members,  to  be  again  eligible,  or  ineligible,  as  the  laws  shall 

direct. 

SEC.  6.  That  elections  of  members  to  serve  as  representatives  of 
the  people,  in  assembly,  ought  to  be  free;  and  that  all  men,  having 
sufficient  evidence  of  permanent  common  interest  with,  and  attachment 
to,  the  community,  have  the  right  of  suffrage,  and  cannot  be  taxed  or 
deprived  of  their  property  for  public  uses,  without  their  own  consent, 
or  that  of  their  representatives  so  elected,  nor  bound  by  any  law  to 
which  they  have  not,  in  like  manner,  assented,  for  the  public  good. 

SEC.  7.  That  all  power  of  suspending  laws,  or  the  execution  of  laws, 
by  any  authority  without  consent  of  the  representatives  of  the  people, 
is  injurious  to  their  rights,  and  ought  not  to  be  exercised. 

SEC.  8.  That  in  all  capital  or  criminal  prosecutions  a  man  hath  a 
right  to  demand  the  cause  and  nature  of  his  accusation,  to  be  confronted 
with  the  accusers  and  witnesses,  to  call  for  evidence  in  his  favor,  and  to 
a  speedy  trial  by  an  impartial  jury  of  twelve  men  of  his  vicinage, 
without  whose  unanimous  consent  he  can  not  be  found  guilty;  nor  can 
he  be  compelled  to  give  evidence  against  himself;  that  no  man  be  de- 
prived of  his  liberty,  except  by  the  law  of  the  land  or  the  judgment  of 
his  peers. 

SEC.  9.  That  excessive  bail  ought  not  to  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted. 

SEC.  10.  That  general  warrants,  whereby  an  officer  or  messenger 
may  be  commanded  to  search  suspected  places  without  evidence  of  a 
fault  committed,  or  to  seize  any  person  or  persons  not  named,  or  whose 
offence  is  not  particularly  described  andj  supported  by  evidence,  are 
grievous  and  oppressive,  and  ought  not  to  be  granted. 

SEC.  ii.  That  in  controversies  respecting  property,  and  in  suits 
between  man  and  man,  the  ancient  trial  by  jury  is  preferable  to  any 
other,  and  ought  to  be  held  sacred. 

SEC.  12.  That  freedom  of  the  press  is  one  of  the  great  bulwarks  of 
liberty,  and  can  never  be  restrained  but  by  despotic  governments. 

SEC.  13.  That  a  well-regulated  militia,  composed  of  the  body  of  the 
people,  trained  to  arms,  is  the  proper,  natural,  and  safe  defence  of  a 
free  state;  that  standing  armies,  in  time  of  peace,  should  be  avoided,  as 
dangerous  to  liberty;  and  that  in  all  cases  the  military  should  be  under 
strict  subordination  to,  and  governed  by,  the  civil  power. 

SEC.  14.  That  the  people  have  a  right  to  uniform  government;  and, 
therefore,  that  no  government  separate  from,  or  independent  of  the 
government  of  Virginia,  ought  to  be  erected  or  established  within  the 
limits  thereof. 

SEC.  15.  That  no  free  government,  or  the  blessings  of  liberty,  can  be 
preserved  to  any  people,  but  by  a  firm  adherence  to  justice,  modera- 


512 


APPENDIX 


APPENDIX     tion,  temperance,  frugality,  and  virtue,  and  by  frequent  recurrence 
VIII         to  fundamental  principles. 

SEC.  1 6.  That  religion,  or  the  duty  which  we  owe  to  our  Creator, 
and  the  manner  of  discharging  it,  can  be  directed  only  by  reason  and 
conviction,  not  by  force  or  violence;  and  therefore  all  men  are  equally 
entitled  to  the  free  exercise  of  religion  according  to  the  dictates  of  con- 
science; and  that  it  is  the  mutual  duty  of  all  to  practice  Christian 
forbearance,  love,  and  charity  towards  each  other.1 

1  Virginia's  first  constitution  was  adopted  or  declared  by  it  June  29, 
framed  by  the  convention  that  1776,  without  submission  to  the 
issued  this  bill  of  rights,  and  was  people  for  ratification. 


IX 

DECLARATION  OF  INDEPENDENCE 

IN  CONGRESS,  JULY  4,  1776 

THE    UNANIMOUS    DECLARATION    OF    THE    THIRTEEN    UNITED 
STATES   OF  AMERICA 

WHEN,  in  the  course  of  human  events,  it  becomes  necessary  for  one     APPENDIX 
people  to  dissolve  the  political  bands  which  have  connected  them  with  IX 

another,  and  to  assume,  among  the  powers  of  the  earth,  the  separate 
and  equal  station  to  which  the  laws  of  nature  and  of  nature's  God  entitle 
them,  a  decent  respect  to  the  opinions  of  mankind  requires  that  they 
should  declare  the  causes  which  impel  them  to  the  separation. 

We  hold  these  truths  to  be  self-evident:  —  that  all  men  are  created 
equal ;  that  they  are  endowed  by  their  Creator  with  certain  unalienable 
rights ;  that  among  these  are  life,  liberty,  and  the  pursuit  of  happiness. 
That  to  secure  these  rights,  governments  are  instituted  among  men, 
deriving  their  just  powers  from  the  consent  of  the  governed;  that 
whenever  any  form  of  government  becomes  destructive  of  these  ends, 
it  is  the  right  of  the  people  to  alter  or  to  abolish  it,  and  to  institute  a 
new  government,  laying  its  foundation  on  such  principles,  and  organ- 
izing its  powers  in  such  form,  as  to  them  shall  seem  most  likely  to  ef- 
fect their  safety  and  happiness.  Prudence,  indeed,  will  dictate,  that 
governments  long  established  should  not  be  changed  for  light  and  trans- 
ient causes;  and  accordingly  all  experience  hath  shown  that  mankind 
are  more  disposed  to  suffer  while  evils  are  sufferable,  than  to  right  them- 
selves by  abolishing  the  forms  to  which  they  are  accustomed.  But  when 
a  long  train  of  abuses  and  usurpations,  pursuing  invariably  the  same 
object,  evinces  a  design  to  reduce  them  under  absolute  despotism,  it 
is  their  right,  it  is  their  duty,  to  throw  off  such  government,  and  to  pro- 
vide new  guards  for  their  future  security.  Such  has  been  the  patient 
sufferance  of  these  colonies;  and  such  is  now  the  necessity  which  con- 
strains them  to  alter  their  former  systems  of  government.  The  history 
of  the  present  King  of  Great  Britain  is  a  history  of  repeated  injuries  and 
usurpations,  all  having  in  direct  object  the  establishment  of  an  ab- 
solute tyranny  over  these  States.  To  prove  this,  let  facts  be  submitted 
to  a  candid  world. 

He  has  refused  his  assent  to  laws  the  most  wholesome  and  necessary 
for  the  public  good. 

He  has  forbidden  his  governors  to  pass  laws  of  immediate  and 
pressing  importance,  unless  suspended  in  their  operation  till  his  assent 
should  be  obtained:  and  when  so  suspended  he  has  utterly  neglected 
to  attend  to  them.  He  has  refused  to  pass  other  laws  for  the  accommo- 
dation of  large  districts  of  people,  unless  those  people  would  relinquish 


514  ;  APPENDIX 

APPENDIX  the  right  of  representation  in  the  legislature  —  a  right  inestimable  to 
IX  them,  and  formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual,  uncom- 
fortable, and  distant  from  the  repository  of  their  public  records,  for 
the  sole  purpose  of  fatiguing  them  into  compliance  with  his  measures. 

He  has  dissolved  representative  houses  repeatedly,  for  opposing, 
with  manly  firmness,  his  invasions  on  the  rights  of  the  people. 

He  has  refused,  for  a  long  time  after  such  dissolution,  to  cause  others 
to  be  elected;  whereby  the  legislative  powers,  incapable  of  annihila- 
tion, have  returned  to  the  people  at  large  for  their  exercise;  the  State 
remaining,  in  the  mean  time,  exposed  to  all  the  dangers  of  invasion 
from  without  and  convulsions  within. 

He  has  endeavoured  to  prevent  the  population  of  these  States;  for  that 
purpose  obstructing  the  laws  for  naturalization  of  foreigners;  refusing 
to  pass  others  to  encourage  their  migration  hither,  and  raising  the 
conditions  of  new  appropriations  of  lands. 

He  has  obstructed  the  administration  of  justice,  by  refusing  his  as- 
sent to  laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependent  on  his  will  alone,  for  the  tenure  of  their 
offices  and  the  amount  and  payment  of  their  salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent  hither  swarms  of 
officers,  to  harass  our  people,  and  eat  out  their  substance. 

He  has  kept  among  us,  in  times  of  peace,  standing  armies,  without 
the  consent  of  our  legislatures. 

He  has  affected  to  render  the  military  independent  of,  and  superior 
to  the  civil  power. 

He  has  combined  with  others  to  subject  us  to  a  jurisdiction  foreign  to 
our  constitution,  and  unacknowledged  by  our  laws;  giving  his  assent 
to  their  acts  of  pretended  legislation : 

For  quartering  large  bodies  of  armed  troops  among  us : 

For  protecting  them,  by  a  mock  trial,  from  punishment  for  any  mur- 
ders which  they  should  commit  on  the  inhabitants  of  these  States : 

For  cutting  off  our  trade  with  all  parts  of  the  world : 

For  imposing  taxes  on  us  without  our  consent: 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial  by  jury: 

For  transporting  us  beyond  seas  to  be  tried  for  pretended  offences: 

For  abolishing  the  free  system  of  English  laws  in  a  neighbouring  pro- 
vince, establishing  therein  an  arbitrary  government,  and  enlarging  its 
boundaries,  so  as  to  render  it  at  once  an  example  and  fit  instrument  for 
introducing  the  same  absolute  rule  into  these  colonies: 

For  taking  away  our  charters,  abolishing  our  most  valuable  laws, 
and  altering,  fundamentally,  the  forms  of  our  government: 

For  suspending  our  own  legislatures,  and  declaring  themselves  in- 
vested with  powers  to  legislate  for  us  in  all  cases  whatsoever. 

He  has  abdicated  government  here,  by  declaring  us  out  of  his  pro- 
tection, and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our  coasts,  burnt  our  towns,  and 
destroyed  the  lives  of  our  people. 


APPENDIX  515 

He  is  at  this  time  transporting  large  armies  of  foreign  mercenaries     APPENDIX 
to  complete  the  works  of  death,  desolation,  and  tyranny,  already  begun  IX 

with  circumstances  of  cruelty  and  perfidy  scarcely  paralleled  in  the  most 
barbarous  ages,  and  totally  unworthy  the  head  of  a  civilized  nation. 

He  has  constrained  our  fellow-citizens,  taken  captive  on  the  high 
seas,  to  bear  arms  against  their  country,  to  become  the  executioners 
of  their  friends  and  brethren,  or  to  fall  themselves  by  their  hands. 

He  has  excited  domestic  insurrections  among  us,  and  has  endeavoured 
to  bring  on  the  inhabitants  of  our  frontiers  the  merciless  Indian  savages, 
whose  known  rules  of  warfare  is  an  undistinguished  destruction  of  all 
ages,  sexes,  and  conditions. 

In  every  stage  of  these  oppressions  we  have  petitioned  for  redress  in 
the  most  humble  terms:  our  repeated  petitions  have  been  answered 
only  by  repeated  injury.  A  prince,  whose  character  is  thus  marked 
by  every  act  which  may  define  a  tyrant,  is  unfit  to  be  the  ruler  of  a  free 
people. 

Nor  have  we  been  wanting  in  attention  to  our  British  brethren. 
We  have  warned  them,  from  time  to  time,  of  attempts  by  their  legis- 
lature to  extend  an  unwarrantable  jurisdiction  over  us.  We  have  re- 
minded them  of  the  circumstances  of  our  emigration  and  settlement 
here.  We  have  appealed  to  their  native  justice  and  magnanimity,  and 
we  have  conjured  them  by  the  ties  of  our  common  kindred  to  disavow 
these  usurpations,  which  would  inevitably  interrupt  our  connection 
and  correspondence.  They  too  have  been  deaf  to  the  voice  of  justice 
and  consanguinity.  We  must,  therefore,  acquiesce  in  the  necessity 
which  denounces  our  separation,  and  hold  them,  as  we  hold  the  rest 
of  mankind  —  enemies  in  war,  in  peace,  friends. 

We,  therefore,  the  representatives  of  the  UNITED  STATES  OF 
AMERICA,  in  GENERAL  CONGRESS  assembled,  appealing  to  the 
Supreme  Judge  of  the  World  for  the  rectitude  of  our  intentions,  do, 
in  the  name  and  by  the  authority  of  the  good  people  of  these  Colonies, 
solemnly  publish  and  declare,  that  these  United  Colonies  are,  and  of 
right  ought  to  be,  free  and  independent  States;  that  they  are  absolved 
from  all  allegiance  to  the  British  Crown,  and  that  all  political  connection 
between  them  and  the  State  of  Great  Britain  is,  and  ought  to  be,  to- 
tally dissolved;  and  that,  as  FREE  AND  INDEPENDENT  STATES, 
they  have  full  power  to  levy  war,  conclude  peace,  contract  alliances, 
establish  commerce,  and  to  do  all  other  acts  and  things  which  IN- 
DEPENDENT STATES  may  of  right  do.  And,  for  the  support  of 
this  declaration,  with  a  firm  reliance  on  the  protection  of  DIVINE 
PROVIDENCE,  we  mutually  pledge  to  each  other  our  lives,  our  for- 
tunes, and  our  sacred  honour. 

JOHN   HANCOCK. 

New  Hampshire.  New  York. 

JOSIAH  BARTLETT,  WILLIAM  FLOYD, 

WILLIAM  WHIFFLE,  PHILIP  LIVINGSTON, 

MATTHEW  THORNTON.  FRANCIS  LEWIS, 

LEWIS  MORRIS. 


APPENDIX 


APPENDIX 
IX 


Massachusetts  Bay. 

SAMUEL  ADAMS, 
JOHN  ADAMS, 
ROBERT  TREAT  PAINE, 
ELDRIDGE  GERRY. 


Rhode  Island,  &c. 

STEPHEN  HOPKINS, 
WILLIAM  ELLERY. 

Connecticut. 

ROGER  SHERMAN, 
SAMUEL  HUNTINGTON, 
WILLIAM  WILLIAMS, 
OLIVER  WOLCOTT. 

Delaware. 

CESAR  RODNEY, 
GEORGE  READ, 
THOMAS  McKEAN. 

Maryland. 

SAMUEL  CHASE, 
WILLIAM  PACA, 
THOMAS  STONE, 
CHARLES  CARROLL  OF 
CARROLLTON. 

Virginia. 

GEORGE  WYTHE, 
RICHARD  HENRY  LEE, 
THOMAS  JEFFERSON, 
BENJAMIN  HARRISON, 
THOMAS  NELSON,  JR., 
FRANCIS  LIGHTFOOT  LEE, 
CARTER  BRAXTON. 


New  Jersey. 

RICHARD  STOCKTON, 
JOHN  WITHERSPOON, 
FRANCIS  HOPKINSON, 
JOHN  HART, 
ABRAHAM  CLARK. 

Pennsylvania. 

ROBERT  MORRIS, 
BENJAMIN  RUSH, 
BENJAMIN  FRANKLIN, 
JOHN  MORTON, 
GEORGE  CLYMER, 
JAMES  SMITH, 
GEORGE  TAYLOR, 
JAMES  WILSON, 
GEORGE  Ross. 

North  Carolina. 

WILLIAM  HOOPER. 
JOSEPH  HEWES, 
JOHN  PENN. 

South  Carolina. 

EDWARD  RUTLEDGE, 
THOMAS  HEYWARD,  JR., 
THOMAS  LYNCH,  JR., 
ARTHUR  MIDDLETON. 


Georgia. 

BUTTON  GWINNETT, 
LYMAN  HALL, 
GEORGE  WALTON. 


ARTICLES  OF  CONFEDERATION,  NOV.  15,  1777* 


To  all  to  whom  these  Presents  shall  come,  we  the  undersigned  Delegates  of 
the  States  affixed  to  our  Names  send  greeting 

WHEREAS  the  Delegates  of  the  United  States  of  America  in  Congress 
assembled  did  on  the  fifteenth  day  of  November  in  the  Year  of  our 
Lord  One  Thousand  Seven  Hundred  and  Seventyseven,  and  in  the 
Second  Year  of  the  Independence  of  America,  agree  to  certain  Articles 


fr  *  Congress  Resolved,  on  the  nth 
of  June,  1776,  that  a  committee 
should  be  appointed  to  prepare  and 
digest  the  form  of  a  confederation  to 
be  entered  into  between  the  Colo- 
nies; and  on  the  day  following,  after 
it  had  been  determined  that  the 
committee  should  consist  of  a  mem- 
ber from  each  Colony,  the  following 
persons  were  appointed  to  perform 
that  duty,  to  wit:  Mr.  Bartlett,  Mr. 
S.  Adams,  Mr.  Hopkins,  Mr.  Sher- 
man, Mr.  R.  R.  Livingston,  Mr. 
Dickinson,  Mr.  M'Kean,  Mr.  Stone, 
Mr.  Nelson,  Mr.  Hewes,  Mr.  E. 
Rutledge,  and  Mr.  Gwinnett.  Upon 
the  report  of  this  committee,  the 
subject  was,  from  time  to  time,  de- 
bated, until  the  I5th  of  November, 
1777,  when  a  copy  of  the  confedera- 
tion being  made  out,  and  sundry 
amendments  made  in  the  diction, 
without  altering  the  sense,  the  same 
was  finally  agreed  to.  Congress,  at 
the  same  time,  directed  that  the 
articles  should  be  proposed  to  the 
legislatures  of  all  the  United  States, 
to  be  considered,  and  if  approved 
of  by  them,  they  were  advised  to 
authorize  their  delegates  to  ratify 
the  same  in  the  Congress  of  the 
United  States;  which  being  done, 
the  same  should  become  conclusive. 
Three  hundred  copies  of  the  Articles 
of  Confederation  were  ordered  to  be 


printed  for  the  use  of  Congress;  and 
on  the  1 7th  of  November,  the  form 
of  a  circular  letter  to  accompany 
them  was  brought  in  by  a  committee 
appointed  to  prepare  it,  and  being 
agreed  to,  thirteen  copies  of  it  were 
ordered  to  be  made  out,  to  be  signed 
by  the  president  and  forwarded  to 
the  several  States,  with  copies  of  the 
confederation.  On  the  29th  of  No- 
vember ensuing,  a  committee  of 
three  was  appointed,  to  procure  a 
translation  of  the  articles  to  be  made 
into  the  French  language,  and  to 
report  an  address  to  the  inhabitants 
of  Canada,  &c.  On  the  26th  of  June, 
1778,  the  form  of  a  ratification  of 
the  Articles  of  Confederation  was 
adopted,  and,  it  having  been  en- 
grossed on  parchment,  it  was  signed 
on  the  9th  of  July  on  the  part  and  in 
behalf  of  their  respective  States,  by 
the  delegates  of  New  Hampshire, 
Massachusetts  Bay,  Rhode  Island 
and  Providence  Plantations,  Con- 
necticut, New  York,  Pennsylvania, 
Virginia,  and  South  Carolina,  agree- 
ably to  the  powers  vested  in  them. 
The  delegates  of  North  Carolina 
signed  on  the  2ist  of  July,  those  of 
Georgia  on  the  24th  of  July,  and 
those  of  New  Jersey  on  the  26th  of 
November  following.  On  the  5th  of 
May,  1779,  Mr.  Dickinson  and  Mr. 
Van  Dyke  signed  in  behalf  of  the 


APPENDIX 
X 


5i8  APPENDIX 

APPENDIX     of  Confederation  and  perpetual  Union  between  the  States  of  Newhamp- 
X  shire,   Massachusetts-bay,  Rhodeisland  and  Providence  Plantations, 

Connecticut,  New- York,  New-Jersey,  Pennsylvania,  Delaware,  Mary- 
land, Virginia,  North-Carolina,  South-Carolina  and  Georgia  in  the 
Words  following,  viz. : 

Articles  of  Confederation  and  perpetual  Union  between  the  States  of 
Newhampshire,  Massachusetts-bay,  Rhodeisland  and  Providence  Plan- 
tations, Connecticut,  New- York,  New-Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North-Carolina,  South- Carolina  and  Georgia. 

ARTICLE  I.  The  stile  of  this  confederacy  shall  be  "The  United  States 
of  America." 

ARTICLE  II.  Each  State  retains  its  sovereignty,  freedom  and  inde- 
pendence, and  every  power,  jurisdiction  and  right,  which  is  not  by  this 
confederation  expressly  delegated  to  the  United  States,  in  Congress 
assembled. 

ARTICLE  III.  The  said  States  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  common  defence,  the 
security  of  their  liberties,  and  their  mutual  and  general  welfare,  binding 
themselves  to  assist  each  other,  against  all  force  offered  to,  or  attacks 
made  upon  them,  or  any  of  them,  on  account  of  religion,  sovereignty, 
trade,  or  any  other  pretence  whatever, 

ARTICLE  IV.  The  better  to  secure  and  perpetuate  mutual  friendship 
and  intercourse  among  the  people  of  the  different  States  in  this  Union, 
the  free  inhabitants  of  each  of  these  States,  paupers,  vagabonds  and 
fugitives  from  justice  excepted,  shall  be  entitled  to  all  privileges  and 
immunities  of  free  citizens  in  the  several  States ;  and  the  people  of  each 
State  shall  have  free  ingress  and  regress  to  and  from  any  other  State, 
and  shall  enjoy  therein  all  the  privileges  of  trade  and  commerce,  subject 
to  the  same  duties,  impositions  and  restrictions  as  the  inhabitants 
thereof  respectively,  provided  that  such  restrictions  shall  not  extend 
so  far  as  to  prevent  the  removal  of  property  imported  into  any  State, 
to  any  other  State  of  which  the  owner  is  an  inhabitant;  provided  also 
that  no  imposition,  duties  or  restriction  shall  be  laid  by  any  State,  on 
the  property  of  the  United  States,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with  treason,  felony,  or  other  high 
misdemeanor  in  any  State,  shall  flee  from  justice,  and  be  found  in  any 

State   of    Delaware,    Mr.    M'Kean  age  of  the  circumstance  to  dissem- 

having  previously  signed  in  Febru-  inate  opinions  of  an  ultimate  dis- 

ary,  at  which  time  he  produced  a  solution  of  the  Union,  the  legislature 

power  to  that  effect.   Maryland  did  of  the  State  passed  an  act  to  em- 

not  ratify  until  the  year  1781.   She  power  their  delegates  to  subscribe 

had  instructed  her  delegates,  on  the  and  ratify  the  articles,  which  was 

1 5th  of  December,  1778,  not  to  agree  accordingly  done  by  Mr.   Hanson 

to  the  confederation  until  matters  and  Mr.  Carroll,  on  the  1st  of  March 

respecting  the  western  lands  should  of  that  year,  which  completed  the 

be  settled  on  principles  of  equity  ratifications  of  the  act;  and  Congress 

and  sound  policy;  but,  on  the  3Oth  assembled  on  the  2d  of  March  under 

of  January,  1781,  finding  that  the  the  new  powers, 
enemies  of  the  country  took  advant- 


APPENDIX  519 

of  the  United  States,  he  shall  upon  demand  of  the  Governor  or  Execu-      APPENDIX 
tive  power,  of  the  State  from  which  he  fled,  be  delivered  up  and  removed  X , 

to  the  State  having  jurisdiction  of  his  offence. 

Full  faith  and  credit  shall  be  given  in  each  of  these  States  to  the 
records,  acts  and  judicial  proceedings  of  the  courts  and  magistrates  of 
every  other  State. 

ARTICLE  V.  For  the  more  convenient  management  of  the  general 
interests  of  the  United  States,  delegates  shall  be  annually  appointed  in 
such  manner  as  the  legislature  of  each  State  shall  direct,  to  meet  in 
Congress  on  the  first  Monday  in  November,  in  every  year,  with  a  power 
reserved  to  each  State,  to  recall  its  delegates,  or  any  of  them,  at  any 
time  within  the  year,  and  to  send  others  in  their  stead,  for  the  remainder 
of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than  two,  nor  by 
more  than  seven  members;  and  no  person  shall  be  capable  of  being  a 
delegate  for  more  than  three  years  in  any  term  of  six  years ;  nor  shall  any 
person,  being  a  delegate,  be  capable  of  holding  any  office  under  the 
United  States,  for  which  he,  or  another  for  his  benefit  receives  any  sal- 
ary, fees  or  emolument  of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  a  meeting  of  the  States, 
and  while  they  act  as  members  of  the  committee  of  the  States. 

In  determining  questions  in  the  United  States,  in  Congress  assembled, 
each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  impeached  or 
questioned  in  any  court,  or  place  out  of  Congress,  and  the  members  of 
Congress  shall  be  protected  in  their  persons  from  arrests  and  imprison- 
ments, during  the  time  of  their  going  to  and  from,  and  attendance  on 
Congress,  except  for  treason,  felony,  or  breach  of  the  peace. 

ARTICLE  VI.  No  State  without  the  consent  of  the  United  States  in 
Congress  assembled,  shall  send  any  embassy  to,  or  receive  any  embassy 
from,  or  enter  into  any  conference,  agreement,  alliance  or  treaty  with 
any  king,  prince  or  state ;  nor  shall  any  person  holding  any  office  of  profit 
or  trust  under  the  United  States,  or  any  of  them,  accept  of  any  present, 
emolument,  office  or  title  of  any  kind  whatever  from  any  king,  prince  or 
foreign  state ;  nor  shall  the  United  States  in  Congress  assembled,  or  any 
of  them,  grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation  or 
alliance  whatever  between  them,  without  the  consent  of  the  United 
States  in  Congress  assembled,  specifying  accurately  the  purposes  for 
which  the  same  is  to  be  entered  into,  and  how  long  it  shall  continue. 

No  State  shall  lay  any  imposts  or  duties,  which  may  interfere  with  any 
stipulations  in  treaties,  entered  into  by  the  United  States  in  Congress 
assembled,  with  any  king,  prince  or  state,  in  pursuance  of  any  treaties 
already  proposed  by  Congress,  to  the  courts  of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  State, 
except  such  number  only,  as  shall  be  deemed  necessary  by  the  United 
States  in  Congress  assembled,  for  the  defence  of  such  State,  or  its  trade; 
nor  shall  any  body  of  forces  be  kept  up  by  any  State,  in  time  of  peace, 


520  'APPENDIX 

APPENDIX  except  such  number  only,  as  in  the  judgment  of  the  United  States,  in 
X  Congress  assembled,  shall  be  deemed  requisite  to  garrison  the  forts 

necessary  for  the  defence  of  such  State;  but  every  State  shall  always 
keep  up  a  well  regulated  and  disciplined  militia,  sufficiently  armed  and 
accoutered,  and  shall  provide  and  constantly  have  ready  for  use,  in 
public  stores,  a  due  number  of  field  pieces  and  tents,  and  a  proper  quan- 
tity of  arms,  ammunition  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the  United 
States  in  Congress  assembled,  unless  such  State  be  actually  invaded  by 
enemies,  or  shall  have  received  certain  advice  of  a  resolution  being 
formed  by  some  nation  of  Indians  to  invade  such  State,  and  the  danger 
is  so  imminent  as  not  to  admit  of  a  delay,  till  the  United  States  in  Con- 
gress assembled  can  be  consulted :  nor  shall  any  State  grant  commissions 
to  any  ships  or  vessels  of  war,  nor  letters  of  marque  or  reprisal,  except  it 
be  after  a  declaration  of  war  by  the  United  States  in  Congress  assembled, 
and  then  only  against  the  kingdom  or  state  and  the  subjects  thereof, 
against  which  war  has  been  so  declared,  and  under  such  regulations  as 
shall  be  established  by  the  United  States  in  Congress  assembled,  unless 
such  State  be  infested  by  pirates,  in  which  case  vessels  of  war  may  be 
fitted  out  for  that  occasion,  and  kept  so  long  as  the  danger  shall  con- 
tinue, or  until  the  United  States  in  Congress  assembled  shall  determine 
otherwise. 

ARTICLE  VII.  When  land-forces  are  raised  by  any  State  for  the  com- 
mon defence,  all  officers  of  or  under  the  rank  of  colonel,  shall  be  ap- 
pointed by  the  Legislature  of  each  State  respectively  by  whom  such 
forces  shall  be  raised,  or  in  such  manner  as  such  State  shall  direct,  and 
all  vacancies  shall  be  filled  up  by  the  State  which  first  made  the  ap- 
pointment. 

ARTICLE  VIII.  All  charges  of  war,  and  all  other  expenses  that  shall 
be  incurred  for  the  common  defence  or  general  welfare,  and  allowed 
by  the  United  States  in  Congress  assembled,  shall  be  defrayed  out  of 
a  common  treasury,  which  shall  be  supplied  by  the  several  States,  in 
proportion  to  the  value  of  all  land  within  each  State,  granted  to  or  sur- 
veyed for  any  person,  as  such  land  and  the  buildings  and  improvements 
thereon  shall  be  estimated  according  to  such  mode  as  the  United  States 
in  Congress  assembled,  shall  from  time  to  time  direct  and  appoint. 

The  taxes  for  paying  that  proportion  shall  be  laid  and  levied  by  the 
authority  and  direction  of  the  Legislatures  of  the  several  States  within 
the  time  agreed  upon  by  the  United  States  in  Congress  assembled. 

ARTICLE  IX.  The  United  States  in  Congress  assembled,  shall  have 
the  sole  and  exclusive  right  and  power  of  determining  on  peace  and  war, 
except  in  the  cases  mentioned  in  the  sixth  article  —  of  sending  and 
receiving  ambassadors  —  entering  into  treaties  and  alliances,  provided 
that  no  treaty  of  commerce  shall  be  made  whereby  the  legislative  power 
of  the  respective  States  shall  be  restrained  from  imposing  such  imposts 
and  duties  on  foreigners,  as  their  own  people  are  subjected  to,  or  from 
prohibiting  the  exportation  or  importation  of  any  species  of  goods  or 
commodities  whatsoever  —  of  establishing  rules  for  deciding  in  all 


APPENDIX  521 

cases,  what  captures  on  land  or  water  shall  be  legal,  and  in  what  manner     APPENDIX 

prizes  taken  by  land  or  naval  forces  in  the  service  of  the  United  States  X 

shall  be  divided  or  appropriated  —  of  granting  letters  of  marque  and 

reprisal  in  times  of  peace  —  appointing  courts  for  the  trial  of  piracies  and 

felonies  committed  on  the  high  seas  and  establishing  courts  for  receiving 

and  determining  finally  appeals  in  all  cases  of  captures,  provided  that 

no  member  of  Congress  shall  be  appointed  a  judge  of  any  of  the  said 

courts. 

The  United  States  in  Congress  assembled  shall  also  be  the  last  resort 
on  appeal  in  all  disputes  and  differences  now  subsisting  or  that  hereafter 
may  arise  between  two  or  more  States  concerning  boundary,  jurisdic- 
tion, or  any  other  cause  whatever;  which  authority  shall  always  be 
exercised  in  the  manner  following.  Whenever  the  legislative  or  execu- 
tive authority  or  lawful  agent  of  any  State  in  controversy  with  another 
shall  present  a  petition  to  Congress,  stating  the  matter  in  question  and 
praying  for  a  hearing,  notice  thereof  shall  be  given  by  order  of  Congress 
to  the  legislative  or  executive  authority  of  the  other  State  in  contro- 
versy, and  a  day  assigned  for  the  appearance  of  the  parties  by  their 
lawful  agents,  who  shall  then  be  directed  to  appoint  by  joint  consent, 
commissioners  or  judges  to  constitute  a  court  for  hearing  and  determin- 
ing the  matter  in  question :  but  if  they  cannot  agree,  Congress  shall  name 
three  persons  out  of  each  of  the  United  States,  and  from  the  list  of  such 
persons  each  party  shall  alternately  strike  out  one,  the  petitioners  be- 
ginning, until  the  number  shall  be  reduced  to  thirteen;  and  from  that 
number  not  less  than  seven,  nor  more  than  nine  names  as  Congress  shall 
direct,  shall  in  the  presence  of  Congress  be  drawn  out  by  lot,  and  the 
persons  whose  names  shall  be  so  drawn  or  any  five  of  them,  shall  be 
commissioners  or  judges,  to  hear  and  finally  determine  the  controversy, 
so  always  as  a  major  part  of  the  judges  who  shall  hear  the  cause  shall 
agree  in  the  determination :  and  if  either  party  shall  neglect  to  attend 
at  the  day  appointed,  without  showing  reasons,  which  Congress  shall 
judge  sufficient,  or  being  present  shall  refuse  to  strike,  the  Congress 
shall  proceed  to  nominate  three  persons  out  of  each  State,  and  the  Secre- 
tary of  Congress  shall  strike  in  behalf  of  such  party  absent  or  refusing; 
and  the  judgment  and  sentence  of  the  court  to  be  appointed,  in  the 
manner  before?prescribed,  shall  be  final1  and  conclusive;  and  if  any  of  the 
parties  shall  refuse  to  submit  to  the  authority  of  such  court,  or  to  appear 
or  defend  their  claim  or  cause,  the  court  shall  nevertheless  proceed  to 
pronounce  sentence,  or  judgment,  which  shall  in  like  manner  be  final 
and  decisive,  the  judgment  or  sentence  and  other  proceedings  being  in 
either  case  transmitted  to  Congress,  and  lodged  among  the  acts  of  Con- 
gress for  the  security  of  the  parties  concerned :  provided  that  every  com- 
missioner, before  he  sits  in  judgment,  shall  take  an  oath  to  be  admm- 
istered  by  one  of  the  judges  of  the  supreme  or  superior  court  of  the  State 
where  the  cause  shall  be  tried,  "well  and  truly  to  hear  and  determine 
the  matter  in  question,  according  to  the  best  of  his  judgment,  without 
favour,  affection  or  hope  of  reward:"  provided  also  that  no  State  shall 
be  deprived  of  territory  for  the  benefit  of  the  United  States. 


522  APPENDIX 

APPENDIX  All  controversies  concerning  the  private  right  of  soil  claimed  under 
X  different  grants  of  two  or  more  States,  whose  jurisdiction  as  they  may 

respect  such  lands,  and  the  States  which  passed  such  grants  are  ad- 
justed, the  said  grants  or  either  of  them  being  at  the  same  time  claimed 
to  have  originated  antecedent  to  such  settlement  of  jurisdiction,  shall 
on  the  petition  of  either  party  to  the  Congress  of  the  United  States,  be 
finally  determined  as  near  as  may  be  in  the  same  manner  as  is  before 
prescribed  for  deciding  disputes  respecting  territorial  jurisdiction  be- 
tween different  States. 

The  United  States  in  Congress  assembled  shall  also  have  the  sole  and 
exclusive  right  and  power  of  regulating  the  alloy  and  value  of  coin  struck 
by  their  own  authority,  or  by  that  of  the  respective  States  —  fixing  the 
standard  of  weights  and  measures  throughout  the  United  States  — 
regulating  the  trade  and  managing  all  affairs  with  the  Indians,  not 
members  of  any  of  the  States,  provided  that  the  legislative  right  of  any 
State  within  its  own  limits  be  not  infringed  or  violated  —  establishing 
and  regulating  post-offices  from  one  State  to  another,  throughout  all 
the  United  States,  and  exacting  such  postage  on  the  papers  passing  thro' 
the  same  as  may  be  requisite  to  defray  the  expenses  of  the  said  office  — 
appointing  all  officers  of  the  land  forces,  in  the  service  of  the  United 
States,  excepting  regimental  officers  —  appointing  all  the  officers  of  the 
naval  forces,  and  commissioning  all  officers  whatever  in  the  service  of 
the  United  States  —  making  rules  for  the  government  and  regulation 
of  the  said  land  and  naval  forces,  and  directing  their  operations. 

The  United  States  in  Congress  assembled  shall  have  authority  to 
appoint  a  committee,  to  sit  in  the  recess  of  Congress,  to  be  denominated 
"a  Committee  of  the  States,"  and  to  consist  of  one  delegate  from  each 
State;  and  to  appoint  such  other  committees  and  civil  officers  as  may 
be  necessary  for  managing  the  general  affairs  of  the  United  States  under 
their  direction  —  to  appoint  one  of  their  number  to  preside,  provided 
that  no  person  be  allowed  to  serve  in  the  office  of  president  more  than 
one  year  in  any  term  of  three  years;  to  ascertain  the  necessary  sums  of 
money  to  be  raised  for  the  service  of  the  United  States,  and  to  appropri- 
ate and  apply  the  same  for  defraying  the  public  expenses  —  to  borrow 
money,  or  emit  bills  on  the  credit  of  the  United  States,  transmitting 
every  half  year  to  the  respective  States  an  account  of  the  sums  of  money 
so  borrowed  or  emitted  —  to  build  and  equip  a  navy  —  to  agree  upon 
the  number  of  land  forces,  and  to  make  requisitions  from  each  State  for 
its  quota,  in  proportion  to  the  number  of  white  inhabitants  in  such 
State;  which  requisition  shall  be  binding,  and  thereupon  the  Legislature 
of  each  State  shall  appoint  the  regimental  officers,  raise  the  men  and 
cloath,  arm  and  equip  them  in  a  soldier  like  manner,  at  the  expense  of 
the  United  States;  and  the  officers  and  men  so  cloathed,  armed  and 
equipped  shall  march  to  the  place  appointed,  and  within  the  time  agreed 
on  by  the  United  States  in  Congress  assembled :  but  if  the  United  States 
in  Congress  assembled  shall,  on  consideration  of  circumstances  judge 
proper  that  any  State  should  not  raise  men,  or  should  raise  a  smaller 
number  than  its  quota,  and  that  any  other  State  should  raise  a  greater 


APPENDIX  52; 

number  of  men  than  the  quota  thereof,  such  extra  number  shall  be     APPENDIX 
raised,  officered,  cloathed,  armed  and  equipped  in  the  same  manner  as  X 

the  quota  of  such  State,  unless  the  legislature  of  such  State  shall  judge 
that  such  extra  number  cannot  be  safely  spared  out  of  the  same,  in 
which  case  they  shall  raise,  officer,  cloath,  arm  and  equip  as  many  of  such 
extra  number  as  they  judge  can  be  safely  spared.  And  the  officers  and 
men  so  cloathed,  armed  and  equipped,  shall  march  to  the  place  ap- 
pointed, and  within  the  time  agreed  on  by  the  United  States  in  Congress 
assembled. 

The  United  States  in  Congress  assembled  shall  never  engage  in  a  war, 
nor  grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor  enter  into 
any  treaties  or  alliances,  nor  coin  money,  nor  regulate  the  value  thereof, 
nor  ascertain  the  sums  and  expenses  necessary  for  the  defence  and  wel- 
fare of  the  United  States,  or  any  of  them,  nor  emit  bills,  nor  borrow 
money  on  the  credit  of  the  United  States,  nor  appropriate  money,  nor 
agree  upon  the  number  of  vessels  of  war,  to  be  built  or  purchased,  or  the 
number  of  land  or  sea  forces  to  be  raised,  nor  appoint  a  commander  in 
chief  of  the  army  or  navy,  unless  nine  States  assent  to  the  same:  nor 
shall  a  question  on  any  other  point,  except  for  adjourning  from  day  to 
day,  be  determined,  unless  by  the  votes  of  a  majority  of  the  United 
States  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn  to  any 
time  within  the  year,  and  to  any  place  within  the  United  States,  so  that 
no  period  of  adjournment  be  for  a  longer  duration  than  the  space  of 
six  months,  and  shall  publish  the  journal  of  their  proceedings  monthly, 
except  such  parts  thereof  relating  to  treaties,  alliances  or  military  opera- 
tions, as  in  their  judgment  require  secresy ;  and  the  yeas  and  nays  of  the 
delegates  of  each  State  on  any  question  shall  be  entered  on  the  journal, 
when  it  is  desired  by  any  delegate ;  and  the  delegates  of  a  State,  or  any 
of  them,  at  his  or  their  request  shall  be  furnished  with  a  transcript  of  the 
said  journal,  except  su'ch  parts  as  are  above  excepted,  to  lay  before  the 
Legislatures  of  the  several  States. 

ARTICLE  X.  The  committee  of  the  States,  or  any  nine  of  them,  shall 
be  authorized  to  execute,  in  the  recess  of  Congress,  such  of  the  powers 
of  Congress  as  the  United  States  in  Congress  assembled,  by  the  consent 
of  nine  States,  shall  from  time  to  time  think  expedient  to  vest  them 
with;  provided  that  no  power  be  delegated  to  the  said  committee,  for 
the  exercise  of  which,  by  the  articles  of  confederation,  the  voice  of  nine 
States  in  the  Congress  of  the  United  States  assembled  is  requisite. 

ARTICLE  XI.  Canada  acceding  to  this  confederation,  and  joining  in 
the  measures  of  the  United  States,  shall  be  admitted  into,  and  entitled 
to  all  the  advantages  of  this  Union:  but  no  other  colony  shall  be 
admitted  into  the  same,  unless  such  admission  be  agreed  to  by  nine 
States. 

ARTICLE  XII.  All  bills  of  credit  emitted,  monies  borrowed  and  debts 
contracted  by,  or  under  the  authority  of  Congress,  before  the  assem- 
bling of  the  United  States,  1m  pursuance  of  the  present  confederation, 
shall  be  deemed  and  considered  as  a  charge  against  the  United  States, 


524  APPENDIX 

APPENDIX     for  payment  and  satisfaction  whereof  the  said  United  States,  and  the 
X  public  faith  are  hereby  solemnly  pledged. 

ARTICLE  XIII.  Every  State  shall  abide  by  the  determinations  of  the 
United  States  in  Congress  assembled,  on  all  questions  which  by  this 
confederation  are  submitted  to  them.  And  the  articles  of  this  confeder- 
ation shall  be  inviolably  observed  by  every  State,  and  the  Union  shall 
be  perpetual;  nor  shall  any  alteration  at  any  time  hereafter  be  made 
in  any  of  them ;  unless  such  alteration  be  agreed  to  in  a  Congress  of  the 
United  States,  and  be  afterwards  confirmed  by  the[Legislatures  of  every 
State. 

And  whereas  it  has  pleased  the  Great  Governor  of  the  world  to  in- 
cline the  hearts  of  the  Legislatures  we  respectively  represent  in  Con- 
gress, to  approve  of,  and  to  authorize  us  to  ratify  the  said  articles  of 
confederation  and  perpetual  union.  Know  ye  that  we  the  undersigned 
delegates,  by  virtue  of  the  power  and  authority  to  us  given  for  that  pur- 
pose, do  by  these  presents,  in  the  name  and  in  behalf  of  our  respective 
constituents,  fully  and  entirely  ratify  and  confirm  each  and  every  of  the 
said  articles  of  confederation  and  perpetual  union,  and  all  and  singular 
the  matters  and  things  therein  contained :  and  we  do  further  solemnly 
plight  and  engage  the  faith  of  our  respective  constituents,  that  they 
shall  abide  by  the  determinations  of  the  United  States  in  Congress 
assembled,  on  all  questions,  which  by  the  said  confederation  are  sub- 
mitted to  them.  And  that  the  articles  thereof  shall  be  inviolably  ob- 
served by  the  States  we  respectively  represent,  and  that  the  Union 
shall  be  perpetual. 

In  witness  whereof  we  have  hereunto  set  our  hands  in  Congress.  Done 
at  Philadelphia  in  the  State  of  Pennsylvania  the  ninth  day  of  July 
in  the  year  of  our  Lord  one  thousand  seven  hundred  and  seventy- 
eight,  and  in  the  third  year  of  the  independence  of  America.1 

On  the  part  &  behalf  of  the  State  of  New  Hampshire. 
JOSIAH  BARTLETT,  JOHN  WENTWORTH,  Junr., 

August  8th,  1778. 

On  the  part  and  behalf  of  the  State  of  Massachusetts  Bay. 
JOHN  HANCOCK,  FRANCIS  DANA, 

SAMUEL  ADAMS,  JAMES  LOVELL, 

ELBRIDGE  GERRY,  SAMUEL  HOLTEN. 

On  the  part  and  behalf  of  the  State  of  Rhode  Island  and  Providence 

Plantations. 

WILLIAM  ELLERY,  JOHN  COLLINS. 

HENRY  MARCH  ANT, 

1  From  the  circumstance  of  dele-  their  names  as  they  happened  to  be 

gates  from  the  same  State  having  present  in  Congress,  after  they  had 

signed  the  Articles  of  Confederation  been  authorized  by  their  constitu- 

at  different  times,  as  appears  by  the  ents. 
dates,  it  is  probable  they  affixed 


APPENDIX  525 

On  the  part  and  behalf  of  the  State  of  Connecticut.  APPENDIX 

ROGER  SHERMAN,  TITUS  HOSMER, 

SAMUEL  HUNTINGTON,  ANDREW  ADAMS. 

OLIVER  WOLCOTT, 

On  the  part  and  behalf  of  the  State  of  New  York. 

JAS.  DUANE,  WM.  DUER, 

FRA.  LEWIS,  Gouv.  MORRIS. 

On  the  part  and  in  behalf  of  the  State  of  New  Jersey,  Novr.  26,  1778. 

JNO.   WlTHERSPOON,  NATHL.   SCUDDER. 

On  the  part  and  behalf  of  the  State  of  Pennsylvania. 

ROBT.  MORRIS,  WILLIAM  CLINGAN, 

DANIEL  ROBERDEAU,  JOSEPH  REED,  22d  July,  1778. 

JONA.  BAYARD  SMITH, 

On  the  part  &  behalf  of  the  State  of  Delaware. 

THO.  M'KEAN,  Feby.  12,  1779.         NICHOLAS  VAN  DYKE.' 
JOHN  DICKINSON,  May  5th,  1779. 

On  the  part  and  behalf  of  the  State  of  Maryland. 
JOHN  HANSON,  March  i,  1781.         DANIEL  CARROLL,  Mar.  i,  1781. 

On  the  part  and  behalf  of  the  State  of  Virginia. 

RICHARD  HENRY  LEE,  JNO.  HARVIE, 

JOHN  BANISTER,  FRANCIS  LIGHTFOOT  LEE. 

THOMAS  ADAMS, 

On  the  part  and  behalf  of  the  State  of  No.  Carolina. 

JOHN  PENN,  July  2ist,  1778.  JNO.  WILLIAMS. 

CORNS.  HARNETT, 

On  the  part  &  behalf  of  the  State  of  South  Carolina. 

HENRY  LAURENS,  RICHD.  HUTSON, 

WILLIAM  HENRY  DRAYTON,  THOS.  HEYWARD,  Junr. 

JNO.  MATTHEWS, 

On  the  part  &  behalf  of  the  State  of  Georgia. 

JNO.  WALTON,  24th  July,  1778.        EDWD.  LANGWORTHY. 
EDWD.  TELFAIR, 


A 

DISSERTATION 

ON     THE 

POLITICAL    UN  ION 

AND 

CON  ST  I  TUTION 

OF      THE 

THIRTEEN  UNITED  STATES 

OF 

NORTH    AMERICA, 

which  is  necessary  to  their  Preservation  and  Happiness; 
humbly  offered  to  the  Public 


By  a  Citizen  of  Philadelphia 


PHILADELPHIA 

PRINTED  AND  SOLD   BY  T.   BRADFORD,   IN  FRONT  STREET, 

THREE  DOORS  BELOW  THE  COFFEE  HOUSE, 

MDCCLXXXII1 * 

1  Title-page  as  originally  printed. 


XI 

THE  EPOCH-MAKING  TRACT  OF  PELATIAH  WEB- 
STER, OF  FEBRUARY  16,  1783,  IN  WHICH  IS  EM- 
BODIED THE  FIRST  DRAFT  OF  THE  EXISTING 
CONSTITUTION  OF  THE  UNITED  STATES 

I.  The  supreme  authority  of  any  State  must  have  power  enough  to     APPENDIX 
effect  the  ends  of  its  appointment,  otherwise  these  ends  cannot  be 
answered,  and  effectually  secured;  at  best  they  are  precarious.    But 

at  the  same  time, 

II.  The  supreme  authority  ought  to  be  so  limited  and  checked, 
if  possible,  as  to  prevent  the  abuse  of  power,  or  the  exercise  of  powers 
that  are  not  necessary  to  the  ends  of  its  appointment,  but  hurtful  and 
oppressive  to  the  subject;  but  to  limit  a  supreme  authority  so  far  as  to 
diminish  its  dignity,  or  lessen  its  power  of  doing  good,  would  be  to  de- 
stroy or  at  least  to  corrupt  it,  and  render  it  ineffectual  to  its  ends. 

III.  A  number  of  sovereign  States  uniting  into  one  Commonwealth, 
and  appointing  a  supreme  power  to  manage  the  affairs  of  the  Union, 
do  necessarily  and  unavoidably  part  with  and  transfer  over  to  such  su- 
preme power,  so  much  of  their  own  sovereignty  as  is  necessary  to  render 
the  ends  of  the  union  effectual,  otherwise  their  confederation  will  be  an 
union  without  bands  of  union,  like  a  cask  without  hoops,  that  may 
and  probably  will  fall  to  pieces,  as  soon  as  it  is  put  to  any  exercise 
which  requires  strength. 

In  like  manner,  every  member  of  civil  society  parts  with  many  of  his 
natural  rights,  that  he  may  enjoy  the  rest  in  greater  security  under  the 
protection  of  society. 

The  Union  of  the  Thirteen  States  of  America  is  of  mighty  conse- 
quence to  the  security,  sovereignty,  and  even  liberty  of  each  of  them, 
and  of  all  the  individuals  who  compose  them ;  united  under  a  natural, 
well  adjusted,  and  effectual  Constitution,  they  are  a  strong,  rich,  grow- 
ing power,  with  great  resources  and  means  of  defence,  which  no  foreign 
power  will  easily  attempt  to  invade  or  insult;  they  may  easily  command 
respect. 

As  their  exports  are  mostly  either  raw  materials  or  provisions,  and 
their  imports  mostly  finished  goods,  their  trade  becomes  a  capital  ob- 
ject with  every  manufacturing  nation  of  Europe,  and  all  the  southern 
colonies  of  America;  their  friendship  and  trade  will  of  course  be  courted, 
and  each  power  in  amity  with  them  will  contribute  to  their  security. 

Their  union  is  of  great  moment  in  another  respect:  they  thereby  form 
a  superintending  power  among  themselves,  that  can  moderate  and 
terminate  disputes  that  may  arise  between  different  States,  restrain 


528  APPENDIX 

APPENDIX     intestine  violence,  and  prevent  any  recourse  to  the  dreadful  decision 
XI  of  the  sword. 

I  do  not  mean  here  to  go  into  a  detail  of  all  the  advantages  of  our 
union ;  they  offer  themselves  on  every  view,  and  are  important  enough 
to  engage  every  honest,  prudent  mind,  to  secure  and  establish  that 
union  by  every  possible  method,  that  we  may  enjoy  the  full  benefit 
of  it,  and  be  rendered  happy  and  safe  under  the  protection  it  affords. 

This  union,  however  important,  cannot  be  supported  without  a  Con- 
stitution founded  on  principles  of  natural  truth,  fitness,  and  utility.  If 
there  is  one  article  wrong  in  such  Constitution,  it  will  discover  itself  in 
practice,  by  its  baleful  operation,  and  destroyer  at  least  injure  the  union. 

Many  nations  have  been  ruined  by  the  errors  of  their  political  con- 
stitution. Such  errors  first  introduce  wrongs  and  injuries,  which  soon 
breed  discontents,  which  gradually  work  up  into  mortal  hatred  and  re- 
sentments; hence  inveterate  parties  are  formed,  which  of  course  make 
the  whole  community  a  house  divided  against  itself,  which  soon  falls 
either  a  prey  to  some  enemies  without,  who  watch  to  devour  them, 
or  else  crumble  into  their  original  constituent  parts,  and  lose  all  re- 
spectability, strength  and  security. 

It  is  as  physically  impossible  to  secure  to  civil  society,  good  cement 
of  union,  duration,  and  security  without  a  Constitution  founded  on 
principles  of  natural  fitness  and  right,  as  to  raise  timbers  into  a  strong, 
compact  building,  which  have  not  been  framed  upon  true  geometric 
principles ;  for  if  you  cut  one  beam  a  foot  too  long  or  too  short,  not  all 
the  authority  and  all  the  force  of  all  the  carpenters  can  ever  get  it  into 
its  place,  and  make  it  fit  with  proper  symmetry  there. 

As  the  fate  then  of  all  governments  depends  much  upon  their  polit- 
ical constitutions,  they  become  an  object  of  mighty  moment  to  the 
happiness  and  well-being  of  society;  and  as  the  framing  of  such  a 
Constitution  requires  great  knowledge  of  the  rights  of  men  and  so- 
cieties, as  well  as  of  the  interests,  circumstances,  and  even  prejudices 
of  the  several  parts  of  the  community  or  commonwealth,  for  which  it 
is  intended ;  it  becomes  a  very  complex  subject,  and  of  course  requires 
great  steadiness  and  comprehension  of  thought,  as  well  as  great  know- 
ledge of  men  and  things,  to  do  it  properly.  I  shall,  however,  attempt 
it  with  my  best  abilities,  and  hope  from  the  candor  of  the  public  to  es- 
cape censure,  if  I  cannot  merit  praise. 

I  begin  with  my  first  and  great  principle,  viz.:  That  the  Constitu- 
tion must  vest  powers  in  every  department  sufficient  to  secure  and  make 
effectual  the  ends  of  it.  The  supreme  authority  must  have  the  power 
of  making  war  and  peace  —  of  appointing  armies  and  navies  —  of  ap- 
pointing officers  both  civil  and  military  —  of  making  contracts  —  of 
emitting,  coining,  and  borrowing  money  —  of  regulating  trade  — 
of  making  treaties  with  foreign  powers  —  of  establishing  post-offices 
—  and  in  short  of  doing  everything  which  the  well-being  of  the  Com- 
monwealth may  require,  and  which  is  not  compatible  to  any  particu- 
lar State,  all  of  which  require  money,  and  cannot  possibly  be  made 
effectual  without  it. 


APPENDIX  529 

They  must  therefore  of  necessity  be  vested  with  power  of  taxation.      APPENDIX 
I  know  this  is  a  most  important  and  weighty  truth,  a  dreadful  engine  XI 

of  oppression,  tyranny,  and  injury,  when  ill  used ;  yet,  from  the  neces- 
sity of  the  case  it  must  be  admitted. 

For  to  give  a  supreme  authority  a  power  of  making  contracts,  without 
any  power  of  payment  —  of  appointing  officers  civil  and  military, 
without  money  to  pay  them  —  a  power  to  build  ships,  without  any 
money  to  do  it  with  —  a  power  of  emitting  money,  without  any  power 
to  redeem  it  —  or  of  borrowing  money,  without  any  power  to  make 
payment,  etc.,  etc.  —  such  solecisms  in  government  are  so  nugatory 
and  absurd  that  I  really  think  to  offer  further  argument  on  the  subject 
would  be  to  insult  the  understanding  of  my  readers. 

To  make  all  these  payments  dependent  on  the  votes  of  thirteen  pop- 
ular assemblies,  who  will  undertake  to  judge  of  the  propriety  of  every 
contract  and  every  occasion  of  money,  and  grant  or  withhold  supplies, 
according  to  their  opinion,  whilst  at  the  same  time  the  operations  of 
the  whole  may  be  stopped  by  the  vote  of  a  single  one  of  them,  is  ab- 
surd; for  this  renders  all  supplies  so  precarious  and  the  public  credit 
so  extremely  uncertain,  as  must  in  its  nature  render  all  efforts  in  war, 
and  all  regular  administration  in  peace,  utterly  impracticable,  as  well 
as  most  pointedly  ridiculous.  Is  there  a  man  to  be  found  who  would 
lend  money,  or  render  personal  services,  or  make  contracts  on  such 
precarious  security?  Of  this  we  have  a  proof  of  fact,  the  strongest  of  all 
proofs,  a  fatal  experience,  the  surest  tho'  severest  of  all  demonstration, 
which  renders  all  other  proof  or  argument  on  this  subject  quite  un- 
necessary. 

The  present  broken  state  of  our  finances  —  public  debts  and  bank- 
ruptcies—  enormous  and  ridiculous  depreciation  of  public  securities 
—  with  the  total  annihilation  of  our  public  credit  —  prove  beyond  all 
contradiction  the  vanity  of  all  recourse  to  the  particular  Assemblies  of 
the  States.  The  recent  instance  of  the  duty  of  5  per  cent  on  imported 
goods,  struck  dead,  and  the  bankruptcies  which  ensued  on  the  single 
vote  of  Rhode  Island,  affords  another  proof  of  what  it  is  certain  may 
be  done  again  in  like  circumstances. 

I  have  another  reason  why  a  power  of  taxation  or  of  raising  money, 
ought  to  be  vested  in  the  supreme  authority  of  our  commonwealth, 
viz. :  the  monies  necessary  for  the  public  ought  to  be  raised  by  a  duty 
imposed  on  imported  goods,  not  a  bare  5  per  cent  or  any  other  per  cent 
on  all  imported  goods  indiscriminately,  but  a  duty  much  heavier  on 
all  articles  of  luxury  or  mere  ornament,  and  which  are  consumed  prin- 
cipally by  the  rich  or  prodigal  part  of  the  community,  such  as  silks  of  all 
sorts,  muslins,  cambricks,  lawns,  superfine  cloths,  spirits,  wines,  etc., etc. 

Such  an  impost  would  ease  the  husbandman,  the  mechanic,  and  the 
poor;  would  have  all  the  practical  effects  of  a  sumptuary  law;  would 
mend  the  economy,  and  increase  the  industry  of  the  community; 
would  be  collected  without  the  shocking  circumstances  of  collectors 
and  their  warrants ;  and  make  the  quantity  of  tax  paid  always  depend 
on  the  choice  of  the  person  who  pays  it. 


530  APPENDIX 

APPENDIX  This  tax  can  be  laid  by  the  supreme  authority  much  more  conven- 
XI  iently  than  by  the  particular  Assemblies,  and  would  in  no  case  be  sub- 

ject to  their  appeals  or  modifications  and,  of  course,  the  public  credit 
would  never  be  dependent  on,  or  liable  to  bankruptcy  by  the  humors 
of  any  particular  Assembly.  In  an  Essay  on  Finance,  which  I  design 
soon  to  offer  to  the  public,  this  subject  will  be  treated  more  fully. 
(See  my  Sixth  Essay  on  Free  Trade  and  Finance,  p.  229.) 

The  delegates  which  are  to  form  that  august  body,  which  are  to 
hold  and  exercise  the  supreme  authority,  ought  to  be  appointed  by 
the  States  in  any  manner  they  please;  in  which  they  should  not  be 
limited  by  any  restrictions;  their  own  dignity  and  the  weight  they 
will  hold  in  the  great  public  councils,  will  always  depend  on  the  abil- 
ities of  the  persons  they  appoint  to  represent  them  there;  and  if  they 
are  wise  enough  to  choose  men  of  sufficient  abilities  and  respectable 
characters,  men  of  sound  sense,  extensive  knowledge,  gravity  and  in- 
tegrity, they  will  reap  the  honor  and  advantage  of  such  wisdom. 

But  if  they  are  fools  enough  to  appoint  men  of  trifling  or  vile  char- 
acters, of  mean  abilities,  faulty  morals,  or  despicable  ignorance,  they 
must  reap  the  fruits  of  such  folly,  and  content  themselves  to  have  no 
weight,  dignity,  or  esteem  in  the  public  councils;  and  what  is  more  to 
be  lamented  by  the  Commonwealth,  to  do  no  good  there. 

I  have  no  objection  to  the  States  electing  and  recalling  their  dele- 
gates as  often  as  they  please,  but  think  it  hard  and  very  injurious  both 
to  them  and  the  Commonwealth  that  they  should  be  obliged  to  discon- 
tinue them  after  three  years'  service,  if  they  find  them  on  that  trial 
to  be  men  of  sufficient  integrity  and  abilities ;  a  man  of  that  experience 
is  certainly  much  more  qualified  to  serve  in  the  place  than  a  new  mem- 
ber of  equal  good  character  can  be;  experience  makes  perfect  in  every 
kind  of  business  —  old,  experienced  statesmen  of  tried  and  approved 
integrity  and  abilities  are  a  great  blessing  to  a  State  —  they  acquire 
great  authority  and  esteem  as  well  as  wisdom,  and  very  much  contribute 
to  keep  the  system  of  government  in  good  and  salutary  order;  and  this 
furnishes  the  strongest  reason  why  they  should  be  continued  in  the  serv- 
ice, on  Plato's  great  maxim  that  "the  man  best  qualified  to  serve,  ought 
to  be  appointed." 

I  am  sorry  to  see  a  contrary  maxim  adopted  in  our  American  coun- 
sels; to  make  the  highest  reason  that  can  be  given  for  continuing  a  man 
in  the  public  administration,  assigned  as  a  constitutional  and  absolute 
reason  for  turning  him  out,  seems  to  me  to  be  a  solecism  of  a  piece  with 
many  other  reforms,  by  which  we  set  out  to  surprise  the  world  with  our 
wisdom. 

If  we  should  adopt  this  maxim  in  the  common  affairs  of  life,  it  would 
be  found  inconvenient,  e.  g.,  if  we  should  make  it  a  part  of  our  Consti- 
tution, that  a  man  who  has  served  a  three  years'  apprenticeship  to  the 
trade  of  a  tailor  or  shoemaker  should  be  obliged  to  discontinue  that 
business  for  the  three  successive  years,  I  am  of  opinion  the  country 
would  soon  be  cleared  of  good  shoemakers  and  tailors.  Men  are  no 
more  born  statesmen  than  shoemakers  or  tailors.  Experience  is  equally 
necessary  to  perfection  in  both. 


APPENDIX  531 

It  seems  to  me  that  a  man's  inducement  to  qualify  himself  for  a  pub-     APPENDIX 
lie  employment  and  make  himself  master  of  it  must  be  much  discour-  XI 

aged  by  this  consideration,  that  let  him  take  whatever  pains  to  qualify 
himself  in  the  best  manner  he  must  be  shortly  turned  out,  and,  of 
course,  it  would  be  of  more  consequence  to  him  to  turn  his  attention 
to  some  other  business  which  he  might  adopt  when  his  present  appoint- 
ment should  expire;  and  by  this  means  the  Commonwealth  is  in  danger 
of  losing  the  zeal,  industry  and  shining  abilities  as  well  as  services  of 
their  most  accomplished  and  valuable  men. 

I  hear  that  the  State  of  Georgia  has  improved  on  this  blessed  prin- 
ciple and  limited  the  continuance  of  their  governors  to  one  year;  the 
consequence  is,  they  have  already  the  ghosts  of  departed  governors 
stalking  about  in  every  part  of  their  State  and  growing  more  plenty 
every  year;  and  as  the  price  of  everything  is  reduced  by  its  plenty  I  can 
suppose  governors  will  soon  be  very  low  there. 

This  doctrine  of  rotation  was  first  proposed  by  some  sprightly 
geniuses  of  brilliant  politics  with  this  cogent  reason :  that  by  introduc- 
ing a  rotation  in  the  public  offices  we  should  have  a  great  number  of 
men  trained  up  to  public  service,  but  it  appears  to  me  that  it  will  be 
more  likely  to  produce  many  jacks  at  all  trades,  but  good  at  none. 

I  think  that  frequent  elections  are  a  sufficient  security  against  the 
continuance  of  men  in  public  office  whose  conduct  is  not  approved, 
and  there  can  be  no  reason  for  excluding  those  whose  conduct  is  ap- 
proved, and  who  are  allowed  to  be  better  qualified  than  any  men  who 
can  be  found  to  supply  their  places. 

Another  great  object  of  government  is  the  apportionment  of  burdens 
and  benefits;  for  if  a  greater  quota  of  burdens  or  a  less  quota  of  benefits 
than  is  just  and  right  be  allotted  to  any  State,  this  ill  apportionment 
will  be  an  everlasting  source  of  uneasiness  and  discontent.  In  the  first 
case,  the  overburdened  State  will  complain;  in  the  last  case,  all  the 
States  whose  quota  of  benefit  is  underrated  will  be  uneasy;  and  this  is 
a  case  of  such  delicacy  that  it  cannot  be  safely  trusted  to  the  arbitrary 
opinion  or  judgment  of  any  body  of  men  however  august. 

Some  natural  principles  of  confessed  equity,  and  which  can  be  reduced 
to  a  certainty,  ought,  if  possible,  to  be  found  and  adopted ;  for  it  is  of 
the  highest  moment  to  the  Commonwealth  to  obviate  and,  if  possible, 
wholly  to  take  away  such  a  fruitful  and  common  source  of  infinite  dis- 
putes as  that  of  apportionment  of  quotas  has  ever  proved  in  all  States 
of  the  earth. 

The  value  of  lands  may  be  a  good  rule,  but  the  ascertainment  of  that 
value  is  impracticable.  No  assessment  can  be  made  which  will  not  be 
liable  to  exception  and  debate.  To  adopt  a  good  rule  in  anything  which 
is  impracticable  is  absurd,  for  it  is  physically  impossible  that  anything 
should  be  good  for  practice  which  cannot  be  practised  at  all;  but  if 
the  value  of  lands  was  capable  of  certain  assessment,  yet  to  adopt  that 
value  as  a  rule  of  apportionment  of  quotas  and  at  the  same  time  to 
except  from  valuation  large  tracts  of  sundry  States  of  immense  value, 
which  have  all  been  defended  by  the  joint  arms  of  the  whole  Empire,  and 


532  APPENDIX 

APPENDIX  for  the  defence  of  which  no  additional  quota  of  supply  is  to  be  demanded 
XI  of  those  States  to  whom  such  lands  are  secured  by  such  joint  efforts 

of  the  States,  is  in  its  nature  unreasonable,  and  will  open  a  door  for  great 
complaint. 

It  is  plain  without  argument  that  such  States  ought  either  to  make 
grants  to  the  Commonwealth  of  such  tracts  of  defended  territory  or  sell 
as  much  of  them  as  will  pay  their  proper  quota  of  defence,  and  pay  such 
sums  into  the  public  treasury.  And  this  ought  to  be  done,  let  what  rule 
of  quota  soever  be  adopted  with  respect  to  the  cultivated  part  of  the 
United  States,  for  no  proposition  of  natural  right  and  justice  can  be 
plainer  than  this,  that  every  part  of  valuable  property  which  is  de- 
fended, ought  to  contribute  its  quota  of  supply  for  that  defence. 

If  then  the  value  of  cultivated  lands  is  found  to  be  an  impracticable 
rule  of  apportionment  of  quotas  we  have  to  seek  for  some  other,  equally 
just  and  less  exceptionable. 

It  appears  to  me  that  the  number  of  living  souls  or  human  persons  of 
whatever  age,  sex  or  condition  will  afford  us  a  rule  or  measure  of  appor- 
tionment which  will  forever  increase  and  decrease  with  the  real  wealth 
of  the  States,  and  will,  of  course,  be  a  perpetual  rule,  not  capable  of  cor- 
ruption by  any  circumstances  of  future  time,  which  is  of  vast  considera- 
tion in  forming  a  constitution  which  is  designed  for  perpetual  duration, 
and  which  will  in  its  nature  be  as  just  as  to  the  inhabited  parts  of  each 
State  as  that  of  the  value  of  lands  or  any  other  that  has  or  can  be  men- 
tioned. 

Land  takes  its  value  not  merely  from  the  goodness  of  its  soil,  but  from 
innumerable  other  relative  advantages,  among  which  the  population  of 
the  country  may  be  considered  as  principal;  as  lands  in  a  full  settled 
country  will  always  (cceteris  paribus)  bring  more  than  lands  in  thin 
settlements.  On  this  principle,  when  the  inhabitants  of  Russia,  Poland, 
etc.,  sell  real  estates,  they  do  not  value  them  as  we  do  by  the  number  of 
acres,  but  by  the  number  of  people  who  live  on  them. 

Where  any  piece  of  land  has  many  advantages  many  people  will 
crowd  there  to  obtain  them,  which  will  create  many  competitors  for  the 
purchase  of  it,  which  will,  of  course,  raise  the  price.  Where  there  are 
fewer  advantages  there  will  be  fewer  competitors  and,  of  course,  a  less 
price;  and  these  two  things  will  forever  be  proportionate  to  each  other, 
and,  of  course,  the  one  will  always  be  a  sure  index  of  the  other. 

The  only  considerable  objection  I  have  ever  heard  to  this  is  that  the 
quality  of  inhabitants  differs  in  the  different  States,  and  it  is  not  reason- 
able that  the  black  slaves  in  the  Southern  States  should  be  estimated 
on  a  par  with  the  white  freemen  in  the  Northern  States.  To  discuss  this 
question  fairly,  I  think  it  will  be  just  to  estimate  the  neat  value  of  the 
labor  of  both,  and  if  it  shall  appear  that  the  labor  of  the  black  person 
produces  as  much  neat  wealth  to  the  Southern  State  as  the  labor  of  the 
white  person  does  to  the  Northern  State,  I  think  it  will  follow  plainly, 
that  they  are  equally  useful  inhabitants  in  point  of  wealth,  and  there- 
fore in  the  case  before  us  should  be  estimated  alike. 

And  if  the  amazing  profits  which  the  Southern  planters  boast  of 


APPENDIX  533 

receiving  from  the  labor  of  their  slaves  on  their  plantations  are  real,  the     APPENDIX 
Southern  people  have  greatly  the  advantage  in  this  kind  of  estimation,  XI 

and  as  this  objection  comes  principally  from  the  southward,  I  should 
suppose  that  the  gentlemen  from  that  part  would  blush  to  urge  it  any 
farther. 

That  the  supreme  authority  should  be  vested  with  powers  to  termin- 
ate and  finally  decide  controversies  arising  between  different  States, 
I  take  it,  will  be  universally  admitted,  but  I  humbly  apprehend  that  an 
appeal  from  the  first  instance  of  trial  ought  to  be  admitted  in  causes  of 
great  moment,  on  the  same  reasons  that  such  appeals  are  admitted  in 
all  the  States  of  Europe.  It  is  well  known  to  all  men  versed  in  courts  that 
the  first  hearing  of  a  cause  rather  gives  an  opening  to  that  evidence  and 
reason  which  ought  to  decide  it,  than  such  a  full  examination  and  thor- 
ough discussion,  as  should  always  precede  a  final  judgment  in  causes  of 
national  consequence.  A  detail  of  reasons  might  be  added,  which  I  deem 
it  unnecessary  to  enlarge  on  here. 

The  supreme  authority  ought  to  have  a  power  of  peace  and  war,  and 
forming  treaties  and  alliances  with  all  foreign  powers ;  which  implies  a 
necessity  of  their  also  having  sufficient  powers  to  enforce  the  obedience 
of  all  subjects  of  the  United  States  to  such  treaties  and  alliances;  with 
full  powers  to  unite  the  force  of  the  States;  and  direct  its  operations  in 
war;  and  to  punish  all  transgressors  in  all  these  respects;  otherwise,  by 
the  imprudence  of  a  few  the  whole  Commonwealth  may  be  embroiled 
with  foreign  powers,  and  the  operations  of  war  may  be  rendered  useless 
or  fail  much  of  their  due  effect. 

All  these  I  conceive  will  be  easily  granted,  especially  the  latter,  as 
the  power  of  Congress  to  appoint  and  direct  the  army  and  navy  in 
war,  with  all  departments  thereto  belonging,  and  punishing  delinquents 
in  them  all  is  already  admitted  into  practice  in  the  course  of  the  pre- 
sent unhappy  war  in  which  we  have  been  long  engaged. 

II.  But  now  the  great  and  most  difficult  part  of  this  weighty  subject 
remains  to  be  considered,  viz.,  how  these  supreme  powers  are  to  be  con- 
stituted in  such  manner  that  they  may  be  able  to  exercise  with  full  force 
and  effect  the  vast  authorities  committed  to  them  for  the  good  and  well- 
being  of  the  United  States,  and  yet  be  so  checked  and  restrained  from 
exercising  them  to  the  injury  and  ruin  of  the  States  that  we  may  with 
safety  trust  them  with  a  commission  of  such  vast  magnitude  —  and  may 
Almighty  Wisdom  direct  my  pen  in  this  arduous  discussion. 

I.  The  men  who  compose  this  important  council  must  be  delegated 
from  all  the  States,  and,  of  course,  the  hope  of  approbation  and  con- 
tinuance of  honors  will  naturally  stimulate  them  to  act  rightly  and  to 
please.  The  dread  of  censure  and  disgrace  will  naturally  operate  as  a 
check  to  restrain  them  from  improper  behavior;  but,  however  natural 
and  forcible  these  motives  may  be,  we  find  by  sad  experience  they  are 
not  always  strong  enough  to  produce  the  effects  we  expect  and  wish  from 
them. 

It  is  to  be  wished  that  none  might  be  appointed  that  were  not  fit  and 
adequate  to  this  weighty  business;  but  a  little  knowledge  of  human 


534  APPENDIX 

APPENDIX  nature  and  a  little  acquaintance  with  the  political  history  of  mankind 
XI  will  soon  teach  us  that  this  is  not  to  be  expected. 

The  representatives  appointed  by  popular  elections  are  commonly  not 
only  the  legal,  but  real,  substantial  representatives  of  their  electors,  i.  e.t 
there  will  commonly  be  about  the  same  proportion  of  grave,  sound,  well- 
qualified  men,  trifling,  desultory  men  —  wild  or  knavish  schemers  — 
and  dull,  ignorant  fools  in  the  delegated  assembly  as  in  the  body  of 
electors. 

I  know  of  no  way  to  help  this.  Such  delegates  must  be  admitted  as 
the  States  are  pleased  to  send,  and  all  that  can  be  done  is  when  they  get 
together  to  make  the  best  of  them. 

We  will  suppose  then  they  are  all  met  in  Congress,  clothed  with  that 
vast  authority  which  is  necessary  to  the  well-being  and  even  existence 
of  the  union,  that  they  should  be  vested  with.  How  shall  we  empower 
them  to  do  all  necessary  and  effectual  good,  and  restrain  them  from 
doing  hurt?  To  do  this  properly  I  think  we  must  recur  to  those  natural 
motives  of  action,  those  feelings  and  apprehensions  which  usually  occur 
to  the  mind  at  the  very  time  of  action ;  for  distant  consequences  how- 
ever weighty  are  often  too  much  disregarded. 

Truth  loves  light  and  is  vindicated  by  it.  Wrong  shrouds  itself  in 
darkness  and  is  supported  by  delusion.  An  honest  well-qualified  man 
loves  light,  can  bear  close  examination  and  critical  inquiry  and  is  best 
pleased  when  he  is  most  thoroughly  understood.  A  man  of  corrupt  de- 
sign, or  a  fool  of  no  design,  hates  close  examination  and  critical  inquiry. 
The  knavery  of  the  one  and  the  ignorance  of  the  other  are  discovered 
by  it  and  they  both  usually  grow  uneasy  before  the  investigation  is  half 
done.  I  do  not  believe  that  there  is  a  more  natural  truth  in  the  world 
than  that  divine  one  of  our  Saviour,  "  he  that  doeth  truth,  cometh  to  the 
light."  I  would  therefore  recommend  that  mode  of  deliberation  which 
will  naturally  bring  on  the  most  thorough  and  critical  discussion  of  the 
subject  previous  to  passing  any  act;  and  for  that  purpose  humbly  pro- 
pose, 

2.  That  the  Congress  shall  consist  of  two  chambers,  an  upper  and  a 
lower  house,  or  senate  and  commons,  with  the  concurrence  of  both 
necessary  to  every  act;  and  that  every  State  send  one  or  more  delegates 
to  each  house.  This  will  subject  every  act  to  two  discussions  before  two 
distinct  chambers  of  men  equally  qualified  for  the  debate,  equally  mas- 
ters of  the  subject,  and  of  equal  authority  in  the  decision. 

These  two  houses  will  be  governed  by  the  same  natural  motives  and 
interests,  viz.,  the  good  of  the  Commonwealth,  and  the  approbation  of 
the  people.  Whilst  at  the  same  time  the  emulation  naturally  arising 
between  them  will  induce  a  very  critical  and  sharp-sighted  inspection 
into  the  motives  of  each  other.  Their  different  opinions  will  bring  on 
conferences  between  the  two  houses  in  which  the  whole  subject  will  be 
exhausted  in  arguments  pro  and  con,  and  shame  will  be  the  portion  of 
obstinate,  convicted  error. 

Under  these  circumstances  a  man  of  ignorance  or  evil  design  will  be 
afraid  to  impose  on  the  credulity,  inattention  or  confidence  of  his  house 


APPENDIX  535 

by  introducing  any  corrupt  or  indigested  proposition  which  he  knows  he     APPENDIX 

must  be  called  on  to  defend  against  the  severe  scrutiny  and  poignant  XI 

objections  of  the  other  house.   I  do  not  believe  the  many  hurtful  and 

foolish  legislative  acts  which  first  or  last  have  injured  all  the  States  on 

earth  have  originated  so  much  in  corruption  as  indolence,  ignorance, 

and  a  want  of  a  full  comprehension  of  the  subject  which  a  full,  prying 

and  emulous  discussion  would  tend  in  a  great  measure  to  remove:  this 

naturally  rouses  the  lazy  and  idle  who  hate  the  pain  of  close  thinking; 

animates  the  ambitious  to  excel  in  policy  and  argument;  and  excites  the 

whole  to  support  the  dignity  of  their  house  and  vindicate  their  own 

propositions. 

I  am  not  of  opinion  that  bodies  of  elective  men,  which  usually  com- 
pose Parliaments,  Diets,  Assemblies,  Congresses,  etc.,  are  commonly 
dishonest ;  but  I  believe  it  rarely  happens  that  there  are  not  designing 
men  among  them ;  and  I  think  it  would  be  much  more  difficult  for  them 
to  unite  their  partisans  in  two  houses,  and  corrupt  or  deceive  them  both, 
than  to  carry  on  their  designs  where  there  is  but  one  unalarmed,  un- 
apprehensive house  to  be  managed ;  and  as  there  is  no  hope  of  making 
these  bad  men  good,  the  best  policy  is  to  embarrass  them  and  make  their 
work  as  difficult  as  possible. 

In  these  assemblies  are  frequently  to  be  found  sanguine  men,  upright 
enough  indeed,  but  of  strong,  wild  projection,  whose  brains  are  always 
teeming  with  Utopian,  chimerical  plans,  and  political  whims  very  de- 
structive to  society.  I  hardly  know  a  greater  evil  than  to  have  the 
supreme  council  of  a  nation  played  off  on  such  men's  wires;  such  base- 
less visions  at  best  end  in  darkness,  and  the  dance,  though  easy  and 
merry  enough  at  first,  rarely  fails  to  plunge  the  credulous,  simple  fol- 
lowers into  sloughs  and  bogs  at  last. 

Nothing  can  tend  more  effectually  to  obviate  these  evils,  and  to 
mortify  and  cure  such  maggoty  brains,  than  to  see  the  absurdity  of  their 
projects  exposed  by  the  several  arguments  and  keen  satire  which  a  full, 
emulous  and  spirited  discussion  of  the  subject  will  naturally  produce. 
We  have  had  enough  of  these  geniuses  in  the  short  course  of  our  politics 
both  in  our  national  and  provincial  councils,  and  have  felt  enough  of 
their  evil  effects  to  induce  us  to  wish  for  any  good  method  to  keep  our- 
selves clear  of  them  in  future. 

The  consultations  and  decisions  of  national  councils  are  so  very 
important  that  the  fate  of  millions  depends  on  them,  therefore  no  man 
ought  to  speak  in  such  assemblies  without  considering  that  the  fate  of 
millions  hangs  on  his  tongue,  and  of  course  a  man  can  have  no  right  in 
such  august  councils  to  utter  indigested  sentiments,  or  indulge  himself 
in  sudden,  unexamined  flights  of  thought;  his  most  tried  and  improved 
abilities  are  due  to  the  State  who  have  trusted  him  with  their  most 
important  interests. 

A  man  must  therefore  be  most  inexcusable  who  is  either  absent  dur- 
ing such  debates,  or  sleeps,  or  whispers,  or  catches  flies  during  the  ar- 
gument, and  just  rouses  when  the  vote  is  called  to  give  his  yea  or  nay 
to  the  weal  or  woe  of  a  nation.  Therefore  it  is  manifestly  proper  that 


536  APPENDIX 

APPENDIX     every  natural  motive  that  can  operate  on  his  understanding  or  his  pas- 
XI  sions  to  engage  his  attention  and  utmost  efforts  should  be  put  in  prac- 

tice, and  that  his  present  feelings  should  be  raised  by  every  motive  of 
honor  and  shame  to  stimulate  him  to  every  practicable  degree  of  dilig- 
ence and  exertion  to  be  as  far  as  possible  useful  in  the  great  discussion. 

I  appeal  to  the  feelings  of  every  reader,  if  he  would  not  (were  he  in 
either  house)  be  much  more  strongly  and  naturally  induced  to  exert 
his  utmost  abilities  and  attention  to  any  question  which  was  to  pass 
through  the  ordeal  of  a  spirited  discussion  of  another  house,  than  he 
would  do  if  the  absolute  decision  depended  on  his  own  house  without 
any  further  inquiry  or  challenge  on  the  subject. 

As  Congress  will  ever  be  composed  of  men  delegated  by  the  several 
States,  it  may  well  be  supposed  that  they  have  the  confidence  of  their 
several  States  and  understand  well  the  policy  and  present  condition 
of  them.  It  may  also  be  supposed  that  they  come  with  strong  local  at- 
tachments and  habits  of  thinking  limited  to  the  interests  of  their  par- 
ticular States.  It  may  therefore  be  supposed  that  they  will  need  much 
information  in  order  to  their  gaining  that  enlargement  of  ideas  and  great 
comprehension  of  thought  which  will  be  necessary  to  enable  them  to 
think  properly  on  that  large  scale  which  takes  into  view  the  interests 
of  all  the  States. 

The  greatest  care  and  wisdom  is  therefore  requisite  to  give  them  the 
best  and  surest  information,  and  of  that  kind  that  may  be  the  most 
safely  relied  on  to  prevent  their  being  deluded  or  prejudiced  by  partial 
representations  made  by  interested  men  who  have  particular  views. 

This  information  may  perhaps  be  best  made  by  the  great  ministers 
of  state,  who  ought  to  be  men  of  the  greatest  abilities  and  integrity. 
Their  business  is  confined  to  their  several  departments,  and  their  at- 
tention engaged  strongly  and  constantly  to  all  the  several  parts  of  the 
same,  the  whole  arrangement,  method  and  order  of  which  are  formed, 
superintended  and  managed  in  their  offices,  and  all  information  re- 
lative to  their  department  centre  there. 

These  ministers  will  of  course  have  the  best  information  and  most 
perfect  knowledge  of  the  state  of  the  nation,  as  far  as  it  relates  to  their 
several  departments,  and  will,  of  course,  be  able  to  give  the  best  in- 
formation to  Congress  in  what  manner  any  bill  proposed  will  affect 
the  public  interest  in  their  several  departments  which  will  nearly  com- 
prehend the  whole. 

The  financiers  manage  the  whole  subject  of  revenues  and  expenditures, 
the  Secretary  of  State  takes  knowledge  of  the  general  policy  and  in- 
ternal government,  the  Minister  of  War  presides  in  the  whole  business 
of  war  and  defence,  and  the  Minister  of  Foreign  Affairs  regards  the 
whole  state  of  the  nation  as  it  stands  related  to  or  connected  with  all 
foreign  powers. 

I  mention  a  Secretary  of  State  because  all  other  nations  have  one, 
and  I  suppose  we  shall  need  one  as  much  as  they,  and  the  multiplicity 
of  affairs  which  naturally  fall  into  his  office  will  grow  so  fast  that  I 
imagine  we  shall  soon  be  under  the  necessity  of  appointing  one. 


APPENDIX  537 

To  these  I  would  add  Judges  of  Law,  and  Chancery;  but  I  fear  they     APPENDIX 
will  not  be  very  soon  appointed  —  the  one  supposes  the  existence  of  XI 

law,  the  other  of  equity  —  and  when  we  shall  be  altogether  convinced 
of  the  absolute  necessity  of  the  real  and  effectual  existence  of  both  of 
these  we  shall  probably  appoint  proper  heads  to  preside  in  those  de- 
partments. I  would  therefore  propose, 

3.  That  when  any  bill  shall  pass  the  second  reading  in  the  house  in 
which  it  originates,  and  before  it  shall  be  finally  enacted,  copies  of  it 
shall  be  sent  to  each  of  the  said  ministers  of  state,  in  being  at  the  time, 
who  shall  give  said  house  in  writing  the  fullest  information  in  their 
power,  and  their  most  explicit  sentiments  of  the  operation  of  the  said 
bill  on  the  public  interest,  as  far  as  relates  to  their  respective  depart- 
ments, which  shall  be  received  and  read  in  said  house  and  entered  on 
their  minutes  before  they  finally  pass  the  bill ;  and  when  they  send  the 
bill  for  concurrence  to  the  other  house  they  shall  send  therewith  the 
said  informations  of  the  said  ministers  of  state,  which  shall  likewise 
be  read  in  that  house  before  their  concurrence  is  finally  passed. 

I  do  not  mean  to  give  these  great  ministers  of  state  a  negative  on 
Congress,'but  I  mean  to  oblige  Congress  to  receive  their  advices  before 
they  pass  their  bills,  and  that  every  act  shall  be  void  that  is  not  passed 
with  these  forms;  and  I  further  propose  that  either  house  of  Congress 
may,  if  they  please,  admit  the  said  ministers  to  be  present  and  assist 
in  the  debates  of  the  house,  but  without  any  right  of  vote  in  the  de- 
cision. 

It  appears  to  me  that  if  every  act  shall  pass  so  many  different  corps 
of  discussion  before  it  is  completed,  where  each  of  them  stake  their  char- 
acters on  the  advice  or  vote  they  give,  there  will  be  all  the  light  thrown 
on  the  case  which  the  nature  and  circumstances  of  it  can  admit,  and 
any  corrupt  man  will  find  it  extremely  difficult  to  foist  in  any  erron- 
eous clause  whatever;  and  every  ignorant  or  lazy  man  will  find  the 
strongest  inducements  to  make  himself  master  of  the  subject  that  he 
may  appear  with  some  tolerable  degree  of  character  in  it;  and  the  whole 
will  find  themselves  in  a  manner  compelled,  diligently  and  sincerely,  to 
seek  for  the  real  state  of  the  facts  and  the  natural  fitness  and  truths 
arising  from  them,  i.  e.,  the  whole  natural  principles  on  which  the  sub- 
ject depends,  and  which  alone  can  endure  every  test,  to  the  end  that 
they  may  have  not  only  the  inward  satisfaction  of  acting  properly  and 
usefully  for  the  States,  but  also  the  credit  and  character  which  is  or 
ought  ever  to  be  annexed  to  such  a  conduct. 

This  will  give  the  great  laws  of  Congress  the  highest  probability, 
presumption  and  means  of  right,  fitness  and  truth  that  any  laws  what- 
ever can  have  at  their  first  enaction,  and  will  of  course  afford  the  high- 
est reason  for  the  confidence  and  acquiescence  of  the  States  and  all  their 
subjects  in  them,  and  being  grounded  in  truth  and  natural  fitness,  their 
operations  will  be  easy,  salutary  and  satisfactory. 

If  experience  shall  discover  error  in  any  law  (for  practice  will  cer- 
tainly discover  such  errors,  if  there  be  any),  the  legislature  will  always 
be  able  to  correct  them  by  such  repeals,  amendments,  or  new  laws  as 


538  APPENDIX 

APPENDIX  shall  be  found  necessary,  but  as  it  is  much  easier  to  prevent  mischiefs 
XI  than  to  remedy  them,  all  possible  caution,  prudence  and  attention 

should  be  used  to  make  the  laws  right  at  first. 

4.  There  is  another  body  of  men  among  us  whose  business  of  life,  and 
whose  full  and  extensive  intelligence,  foreign  and  domestic,  naturally 
make  them  more  perfectly  acquainted  with  the  sources  of  our  wealth, 
and  whose  particular  interests  are  more  intimately  and  necessarily 
connected  with  the  general  prosperity  of  the  country  than  any  other 
order  of  men  in  the  States.  I  mean  the  merchants ;  and  I  could  wish  that 
Congress  might  have  the  benefit  of  that  extensive  and  important 
information  which  this  body  of  men  are  very  capable  of  laying  before 
them. 

Trade  is  of  such  essential  importance  to  our  interests  and  so  inti- 
mately connected  with  all  our  staples,  great  and  small,  that  no  sources 
of  our  wealth  can  flourish  and  operate  to  the  general  benefit  of  the  com- 
munity without  it.  Our  husbandry,  the  great  staple  of  our  country,  can 
never  exceed  our  home  consumption  without  this:  it  is  plain  at  first 
sight  that  the  farmer  will  not  toil  and  sweat  through  the  year  to  raise 
great  plenty  of  the  produce  of  the  soil  if  there  is  no  market  for  his 
produce  when  he  has  it  ready  for  sale,  i.  e.,  if  there  are  no  merchants 
to  buy  it. 

In  like  manner  the  manufacturer  will  not  lay  out  his  business  on  any 
large  scale  if  there  is  no  merchant  to  buy  his  fabrics  when  he  has  fin- 
ished them;  a  vent  is  of  the  most  essential  importance  to  every  manu- 
facturing country.  The  merchants,  therefore,  become  the  natural  ne- 
gotiators of  the  wealth  of  the  country  who  take  off  the  abundance 
and  supply  the  wants  of  the  inhabitants ;  and  as  this  negotiation  is  the 
business  of  their  lives  and  the  source  of  their  own  wealth  they,  of  course, 
become  better  acquainted  with  both  our  abundance  and  wants,  and  are 
more  interested  in  finding  and  improving  the  best  vent  for  the  one, 
and  supply  of  the  other,  than  any  other  men  among  us,  and  they  have 
a  natural  interest  in  making  both  the  purchase  and  supply  as  convenient 
to  their  customers  as  possible,  that  they  may  secure  their  custom  and 
thereby  increase  their  own  business. 

It  follows,  then,  that  the  merchants  are  not  only  qualified  to  give 
the  fullest  and  most  important  information  to  our  supreme  legislature 
concerning  the  state  of  our  trade,  the  abundance  and  wants,  the  wealth 
and  poverty  of  our  people,  i.  e.,  their  most  important  interests,  but  are 
also  the  most  likely  to  do  it  fairly  and  truly,  and  to  forward  with  their 
influence  every  measure  which  will  operate  to  the  convenience  and  bene- 
fits of  our  commerce,  and  oppose  with  their  whole  weight  and  superior 
knowledge  of  the  subject  any  wild  schemes  which  an  ignorant  or  arbi- 
trary legislature  may  attempt  to  introduce,  to  the  hurt  and  embar- 
rassment of  our  intercourse  both  with  one  another  and  with  foreigners. 

The  States  of  Venice  and  Holland  have  ever  been  governed  by  mer- 
chants, or  at  least  their  policy  has  ever  been  under  the  great  influence 
of  that  sort  of  men.  No  States  have  been  better  served,  as  appears  by 
their  great  success,  the  ease  and  happiness  of  their  citizens,  as  well  as 


APPENDIX  539 

the  strength  and  riches  of  their  Commonwealths.   The  one  is  the  old-     APPENDIX 
est,  and  the  other  the  richest  State  in  the  world  of  equal  number  of  XI 

people.  The  one  has  maintained  sundry  wars  with  the  Grand  Turk, 
the  other  has  withstood  the  power  of  Spain  and  France;  and  the  capi- 
tals of  both  have  long  been  the  principal  marts  of  the  several  parts  of 
Europe  in  which  they  are  situated.  And  the  banks  of  both  are  the 
best  supported  and  in  the  best  credit  of  any  banks  in  Europe,  though 
their  countries  or  territories  are  very  small  and  their  inhabitants  but 
a  handful  when  compared  with  the  great  States  in  their  neighbor- 
hood. 

Merchants  must  from  the  nature  of  their  business  certainly  under- 
stand the  interests  and  resources  of  their  country,  the  best  of  any  men 
in  it ;  and  I  know  not  of  any  one  reason  why  they  should  be  deemed  less 
upright  or  patriotic  than  any  other  rank  of  citizen  whatever. 

I  therefore  humbly  propose,  if  the  merchants  in  the  several  States 
are  disposed  to  send  delegates  from  their  body  to  meet  and  attend  the 
sitting  of  Congress,  that  they  shall  be  permitted  to  form  a  chamber 
of  commerce,  and  their  advice  to  Congress  be  demanded  and  admitted 
concerning  all  bills  before  Congress  as  far  as  the  same  may  affect  the 
trade  of  the  States. 

I  have  no  idea  that  the  continent  is  made  for  Congress.  I  take  them 
to  be  no  more  than  the  upper  servants  of  the  great  political  body,  who 
are  to  find  out  things  by  study  and  inquiry  as  other  people  do,  and  there- 
fore I  think  it  necessary  to  place  them  under  the  best  possible  advant- 
ages for  information,  and  to  require  them  to  improve  all  those  advant- 
ages, to  qualify  themselves  in  the  best  manner  possible  for  the  wise 
and  useful  discharge  of  the  vast  trust  and  mighty  authority  reposed 
in  them ;  and  as  I  conceive  the  advice  of  the  merchants  to  be  one  of  the 
greatest  sources  of  mercantile  information  which  is  anywhere  placed 
within  their  reach  it  ought  by  no  means  to  be  neglected,  but  so  hus- 
banded and  improved  that  the  greatest  possible  advantages  may  be 
derived  from  it. 

Besides  this  I  have  another  reason  why  the  merchants  ought  to  be 
consulted.  I  take  it  to  be  very  plain  that  the  husbandry  and  manu- 
factures of  the  country  must  be  ruined  if  the  present  rate  of  taxes  is 
continued  on  them  much  longer,  and,  of  course,  a  very  great  part  of 
our  revenue  must  arise  from  imposts  on  merchandise  which  will  fall 
directly  within  the  merchants'  sphere  of  business,  and  of  course,  their 
concurrence  and  advice  will  be  of  the  utmost  consequence,  not  only  to 
direct  the  properest  mode  of  levying  those  duties,  but  also  to  get  them 
carried  into  quiet  and  peaceable  execution. 

No  men  are  more  conversant  with  the  citizens,  or  more  intimately 
connected  with  their  interests  than  the  merchants,  and  therefore  their 
weight  and  influence  will  have  a  mighty  effect  on  the  minds  of  the 
people.  I  do  not  recollect  an  instance  in  which  the  Court  of  London  ever 
rejected  the  remonstrances  and  advices  of  the  merchants  and  did  not 
suffer  severely  for  their  pride.  We  have  some  striking  instances  of  this 
in  the  disregarded  advices  and  remonstrances  of  very  many  English 


540  APPENDIX 

APPENDIX     merchants  against  the  American  war,  and  their  fears  and  apprehensions 
XI  we  see  verified  almost  like  prophecies  by  the  event. 

I  know  not  why  I  should  continue  this  argument  any  longer,  or  in- 
deed why  I  should  have  urged  it  so  long,  inasmuch  as  I  cannot  con- 
ceive that  Congress  or  anybody  else  will  deem  it  below  the  dignity  of 
the  supreme  power  to  consult  so  important  an  order  of  men  in  matters 
of  the  first  consequence  which  fall  immediately  under  their  notice,  and 
in  which  their  experience  and,  of  course,  their  knowledge  and  advice 
are  preferable  to  those  of  any  other  order  of  men. 

Besides  the  benefits  which  Congress  may  receive  from  this  institu- 
tion, a  chamber  of  commerce  composed  of  members  from  all  trading 
towns  in  the  States,  if  properly  instituted  and  conducted,  will  produce 
very  many,  I  might  almost  say,  innumerable  advantages  of  singular 
utility  to  all  the  States.  It  will  give  dignity,  uniformity  and  safety  to 
our  trade,  establish  the  credit  of  the  bank,  secure  the  confidence  of 
foreign  merchants,  prove  in  ^very  many  instances  a  fruitful  source 
of  improvement  of  our  staples  and  mutual  intercourse,  correct  many 
abuses,  pacify  discontents,  unite  us  in  our  interests,  and  thereby  cement 
the  general  union  of  the  whole  Commonwealth,  will  relieve  Congress 
from  the  pain  and  trouble  of  deciding  many  intricate  questions  of 
trade  which  they  do  not  understand  by  referring  them  over  to  this 
chamber,  where  they  will  be  discussed  by  an  order  of  men,  the  most 
competent  to  the  business  of  any  that  can  be  found  and  most  likely  to 
give  a  decision  that  shall  be  just,  useful  and  satisfactory. 

It  may  be  objected  to  all  this  that  the  less  complex  and  the  more 
simple  every  constitution  is  the  nearer  it  comes  to  perfection.  This 
argument  would  be  very  good  and  afford  a  very  forcible  conclusion  if 
the  government  of  men  was  like  that  of  the  Almighty,  always  founded 
on  wisdom,  knowledge  and  truth ;  but  in  the  present  imperfect  state  of 
human  nature,  where  the  best  of  men  know  but  in  part  and  must  recur 
to  advice  and  information  for  the  rest,  it  certainly  becomes  necessary  to 
form  a  constitution  on  such  principles  as  will  secure  that  information 
and  advice  in  the  best  and  surest  manner  possible. 

It  may  be  further  objected  that  the  forms  herein  proposed  will  em- 
barrass the  business  of  Congress  and  make  it  at  best  slow  and  dilatory. 
As  far  as  this  form  will  prevent  the  hurrying  a  bill  through  the  house 
without  due  examination  the  objection  itself  becomes  an  advantage. 
At  most  these  checks  on  the  supreme  authority  can  have  no  further 
effect  than  to  delay  or  destroy  a  good  bill,  but  cannot  pass  a  bad  one; 
and  I  think  it  much  better  in  the  main  to  lose  a  good  bill  than  to  suffer 
a  bad  one  to  pass  into  a  law.  Besides  it  is  not  to  be  supposed  that  clear, 
plain  cases  will  meet  with  embarrassment,  and  it  is  most  safe  that  un- 
tried, doubtful,  difficult  matters  should  pass  through  the  gravest  and 
fullest  discussion  before  the  sanction  of  the  law  is  given  to  them. 

But  what  is  to  be  done  if  the  two  houses  grow  jealous  and  ill-natured, 
and  after  all  their  information  and  advice  grow  out  of  humor  and  insin- 
cere, and  no  concurrence  can  be  obtained?  I  answer,  sit  still  and  do 
nothing  until  they  get  into  a  better  humor.  I  think  this  is  much  better 


APPENDIX  541 

than   to  pass  laws  in  such  a  temper  and  spirit  as  the  objection     APPENDIX 
supposes.  XI 

It  is,  however,  an  ill  compliment  to  so  many  grave  personages  to  sup- 
pose them  capable  of  throwing  aside  their  reason  and  giving  themselves 
up  like  children  to  the  control  of  their  passion ;  or,  if  this  should  happen 
for  a  moment  that  it  should  continue  any  length  of  time,  is  hardly  to  be 
presumed  of  a  body  of  men  placed  in  such  high  stations  of  dignity  and 
importance,  with  the  eyes  of  all  the  world  upon  them.  But  if  they 
should,  after  all,  be  capable  of  doing  this,  I  think  it  madness  to  set  them 
to  making  laws  during  such  fits.  It  is  best  when  they  are  in  no  condition 
to  do  good  to  keep  them  from  doing  hurt,  and  if  they  do  not  grow  wiser 
in  reasonable  time  I  know  of  nothing  better  than  to  be  ashamed  of  our 
old  appointments,  and  make  new  ones. 

But  what  if  the  country  is  invaded,  or  soirie  other  exigency  happens 
so  pressing  that  the  safety  of  the  State  requires  an  immediate  resolu- 
tion? I  answer,  what  would  you  do  if  such  a  case  should  happen  where 
there  was  but  one  house,  unchecked,  but  equally  divided,  so  that  a  legal 
vote  could  not  be  obtained.  The  matter  is  certainly  equally  difficult  and 
embarrassed  in  both  cases.  But  in  the  case  proposed  I  know  of  no  better 
way  than  that  which  the  Romans  adopted  on  the  like  occasion,  viz., 
that  both  houses  meet  in  one  chamber  and  choose  a  dictator  who  should 
have  and  exercise  the  whole  power  of  both  houses  till  such  time  as  they 
should  be  able  to  concur  in  displacing  him,  and  that  the  whole  power  of 
the  two  houses  should  be  suspended  in  the  mean  time. 

5.  I  further  propose  that  no  grant  of  money  whatever  shall  be  made 
without  an  appropriation,  and  that  rigid  penalties  (no  matter  how  great, 
in  my  opinion  the  halter  would  be  mild  enough)  shall  be  inflicted  on  any 
person,  however  august  his  station,  who  should  give  order,  or  vote  for 
the  payment,  or  actually  pay  one  shilling  of  such  money  to  any  other 
purpose  than  that  of  its  appropriation,  and  that  no  order  whatever  of 
any  superior  in  office  shall  justify  such  payment,  but  every  order  shall 
express  what  funds  it  is  drawn  upon  and  what  appropriation  it  is  to  be 
charged  to,  or  the  order  shall  not  be  paid. 

This  kind  of  embezzlement  is  of  so  fatal  a  nature  that  no  measures  or 
bounds  are  to  be  observed  in  curing  it.  When  ministers  will  set  forth 
the  most  specious  and  necessary  occasions  for  money,  and  induce  the 
people  to  pay  it  in  full  tale,  and  when  they  have  gotten  possession  of  it, 
to  neglect  the  great  objects  for  which  it  was  given,  and  pay  it,  sometimes 
squander  it  away,  for  different  purposes,  oftentimes  for  useless,  yea, 
hurtful  ones,  yea  often  even  to  bribe  and  corrupt  the  very  officers  of  gov- 
ernment, to  betray  their  trust  and  contaminate  the  State  even  in  its 
public  offices  —  to  force  people  to  buy  their  own  destruction  and  pay 
for  it  with  their  hard  labor,  the  very  sweat  of  their  brow,  is  a  crime  of  so 
high  a  nature  that  I  know  not  any  gibbet  too  cruel  for  such  offenders. 

6.  I  would  further  propose  that  the  aforesaid  great  ministers  of  state 
shall  compose  a  Council  of  State,  to  whose  number  Congress  may  add 
three  others,  viz.,  one  from  New  England,  one  from  the  Middle  States 
and  one  from  the  Southern  States,  one  of  which  to  be  appointed  Presid- 


542  APPENDIX 

APPENDIX     ent  by  Congress,  to  all  of  whom  shall  be  committed  the  supreme  execu- 

XI  tive  authority  of  the  States  (all  and  singular  of  them  ever  accountable 

to  Congress)  who  shall  superintend  all  the  executive  departments  and 

appoint  all  executive  officers,  who  shall  ever  be  accountable  to  and 

removable  for  just  cause  by  them  or  Congress,  i.  e.,  either  of  them. 

7.  I  propose  further  that  the  powers  of  Congress,  and  all  the  other 
departments  acting  under  them,  shall  all  be  restricted  to  such  matters 
only  of  general  necessity  and  utility  to  all  the  States  as  cannot  come 
within  the  jurisdiction  of  any  particular  State,  or  to  which  the  authority 
of  any  particular  State  is  not  competent,  so  that  each  particular  State 
shall  enjoy  all  sovereignty  and  supreme  authority  to  all  intents  and 
purposes,  excepting  only  those  high  authorities  and  powers  by  them 
delegated  to  Congress  for  the  purposes  of  the  general  union. 

There  remains  one  very  important  article  still  to  be  discussed,  viz., 
what  methods  the  Constitution  shall  point  out  to  enforce  the  acts  and 
requisitions  of  Congress  through  the  several  States,  and  how  the  States 
which  refuse  or  delay  obedience  to  such  acts  and  requisitions  shall  be 
treated.  This,  I  know,  is  a  particular  of  greatest  delicacy,  as  well  as  of 
the  utmost  importance,  and  therefore,  I  think,  ought  to  be  decidedly 
settled  by  the  Constitution  in  our  coolest  hours,  whilst  no  passions  or 
prejudices  exist  which  may  be  excited  by  the  great  interests  or  strong 
circumstances  of  any  particular  case  which  may  happen. 

I  know  that  supreme  authorities  are  liable  to  err  as  well  as  subordi- 
nate ones.  I  know  that  courts  may  be  in  the  wrong  as  well  as  the  people ; 
such  is  the  imperfect  state  of  human  nature  in  all  ranks  and  degrees  of 
men.  But  we  must  take  human  nature  as  it  is  —  it  cannot  be  mended 
—  and  we  are  compelled  both  by  wisdom  and  necessity  to  adopt  such 
methods  as  promise  the  greatest  attainable  good,  though  perhaps  not 
the  greatest  possible,  and  such  as  are  liable  to  the  fewest  inconveniences, 
though  not  altogether  free  of  them. 

This  is  a  question  of  such  magnitude  that  I  think  it  necessary  to 
premise  the  great  natural  principles  on  which  its  decision  ought  to  de- 
pend. In  the  present  state  of  human  nature  all  human  life  is  a  life  of 
chances;  it  is  impossible  to  make  any  interest  so  certain,  but  there  will 
be  a  chance  against  it,  and  we  are  in  all  cases  obliged  to  adopt  a  chance 
against  us  in  order  to  bring  ourselves  within  the  benefit  of  a  greater 
chance  in  our  favor;  and  that  calculation  of  chances  which  is  grounded 
on  the  great  natural  principles  of  truth  and  fitness  is  of  all  others  the 
most  likely  to  come  out  right. 

1.  No  laws  of  any  State  whatever,  which  do  not  carry  in  them  a  force 
which  extends  to  their  effectual  and  final  execution,  can  afford  a  certain 
or  sufficient  security  to  the  subject.    This  is  too  plain  to  need  any 
proof. 

2.  Laws  or  ordinances  of  any  kind  (especially  of  august  bodies  of  high 
dignity  and  consequence),  which  fail  of  execution,  are  much  worse  than 
none.   They  weaken  the  government,  expose  it  to  contempt,  destroy 
the  confidence  of  all  men,  natives  and  foreigners,  in  it,  and  expose  both 
aggregate  bodies  and  individuals  who  have  placed  confidence  in  it  to 


APPENDIX  543 

many  ruinous  disappointments  which  they  would  have  escaped  had  no     APPENDIX 
law  or  ordinance  been  made ;  therefore,  XI 

3.  To  appoint  a  Congress  with  powers  to  do  all  acts  necessary  for  the 
support  and  uses  of  the  union;  and  at  the  same  time  to  leave  all  the 
States  at  liberty  to  obey  them  or  not  with  impunity,  is,  in  every  view, 
the  grossest  absurdity,  worse  than  a  state  of  nature  without  any  supreme 
authority  at  all,  and  at  best  a  ridiculous  effort  of  childish  nonsense;  and 
of  course, 

4.  Every  State  in  the  Union  is  under  the  highest  obligation  to  obey 
the  supreme  authority  of  the  whole,  and  in  the  highest  degree  amenable 
to  it,  and  subject  to  the  highest  censure  for  disobedience.  Yet  all  this 
notwithstanding,  I  think  the  soul  that  sins  shall  die,  i.  e.,  the  censure  of 
the  great  supreme  power  ought  to  be  so  directed  if  possible  as  to  light 
on  those  persons  who  have  betrayed  their  country  and  exposed  it  to 
dissolution,  by  opposing  and  rejecting  that  supreme  authority  which  is 
the  band  of  our  union  and  from  whence  proceeds  the  principal  strength 
and  energy  of  our  government. 

I  therefore  propose  that  every  person  whatever,  whether  in  public 
or  private  character,  who  shall  by  public  vote  or  overt  act  disobey  the 
supreme  authority,  shall  be  amenable  to  Congress,  shall  be  summoned 
and  compelled  to  appear  before  Congress  and,  on  due  conviction,  suffer 
such  fine,  imprisonment,  or  other  punishment  as  the  supreme  authority 
shall  judge  requisite. 

It  may  be  objected  here  that  this  will  make  a  Member  of  Assembly 
accountable  to  Congress  for  his  vote  in  Assembly.  I  answer,  it  does  so 
in  this  only  case,  viz.,  when  that  vote  is  to  disobey  the  supreme  author- 
ity; no  Member  of  Assembly  can  have  right  to  give  such  a  vote,  and 
therefore  ought  to  be  punished  for  so  doing.  When  the  supreme  author- 
ity is  disobeyed  the  government  must  lose  its  energy  and  effect,  and  of 
course  the  Empire  must  be  shaken  to  its  very  foundation. 

A  government  which  is  but  half  executed,  or  whose  operations  may 
all  be  stopped  by  a  single  vote,  is  the  most  dangerous  of  all  institutions. 
See  the  present  Poland  and  ancient  Greece  buried  in  ruins  in  conse- 
quence of  this  fatal  error  in  their  policy.  A  government  which  has  not 
energy  and  effect  can  never  afford  protection  or  security  to  its  subjects, 
i.  e.,  must  ever  be  ineffectual  to  its  own  ends. 

I  cannot  therefore  admit  that  the  great  ends  of  our  Union  should  lie 
at  the  mercy  of  a  single  State,  or  that  the  energy  of  our  government 
should  be  checked  by  a  single  disobedience,  or  that  such  disobedience 
should  ever  be  sheltered  from  censure  and  punishment;  the  consequence 
is  too  capital,  too  fatal  to  be  admitted.  Even  though  I  know  very  well 
that  a  supreme  authority  with  all  its  dignity  and  importance  is  subject 
to  passions  like  other  lesser  powers,  that  they  may  be  and  often  are 
heated,  violent,  oppressive  and  very  tyrannical,  yet  I  know  also  that 
perfection  is  not  to  be  hoped  for  in  this  life,  and  we  must  take  all  insti- 
tutions with  their  natural  defects  or  reject  them  altogether.  I  will  guard 
against  these  abuses  of  power  as  far  as  possible,  but  I  cannot  give  up  all 
government  or  destroy  its  necessary  energy  for  fear  of  these  abuses. 


544  APPENDIX 

APPENDIX  But  to  fence  them  out  as  far  as  possible,  and  to  give  the  States  as 
XI  great  a  check  on  the  supreme  authority  as  can  consist  with  its  necessary 

energy  and  effect, 

I  propose  that  any  State  may  petition  Congress  to  repeal  any  law  or 
decision  which  they  have  made,  and  if  more  than  half  the  States  do  this, 
the  law  or  decision  shall  be  repealed,  let  its  nature  or  importance  be 
however  great,  excepting  only  such  acts  as  create  funds  for  the  public 
credit,  which  shall  never  be  repealed  till  their  end  is  effected,  or  other 
funds  equally  effectual  are  substituted  in  their  place;  but  Congress  shall 
not  be  obliged  to  repeal  any  of  these  acts  so  petitioned  against  till  they 
have  time  to  lay  the  reasons  of  such  acts  before  such  petitioning  States 
and  to  receive  their  answer;  because  such  petitions  may  arise  from  sud- 
den heats,  popular  prejudices,  or  the  publication  of  matters  false  in  fact, 
and  may  require  time  and  means  of  cool  reflection  and  the  fullest  in- 
formation before  the  final  decision  is  made.  But  if  after  all  more  than 
half  of  the  States  persist  in  their  demand  of  a  repeal,  it  shall  take  place. 

The  reason  is,  the  uneasiness  of  a  majority  of  States  affords  a  strong 
presumption  that  the  act  is  wrong,  for  uneasiness  arises  much  more 
frequently  from  wrong  than  right.  But  if  the  act  was  good  and  right  it 
would  still  be  better  to  repeal  and  lose  it  than  to  force  the  execution  of 
it  against  the  opinion  of  a  major  part  of  the  States;  and  lastly,  if  every 
act  of  Congress  is  subject  to  this  repeal,  Congress  itself  will  have 
stronger  inducement  not  only  to  examine  well  the  several  acts  under 
their  consideration,  but  also  to  communicate  the  reasons  of  them  to  the 
States  than  they  would  have  if  their  simple  vote  gave  the  final  stamp 
of  irrevocable  authority  to  their  acts. 

Further,  I  propose  that  if  the  execution  of  any  act  or  order  of  the 
supreme  authority  shall  be  opposed  by  force  in  any  of  the  States  (which, 
God  forbid)  it  shall  be  lawful  for  Congress  to  send  into  such  State  a 
sufficient  force  to  suppress  it. 

On  the  whole,  I  take  it  that  the  very  existence  and  use  of  our  Union 
essentially  depends  on  the  full  energy  and  final  effect  of  the  laws  made 
to  support  it,  and  therefore  I  sacrifice  all  other  considerations  to  this 
energy  and  effect,  and  if  our  Union  is  not  worth  this  purchase  we  must 
give  it  up  —  the  nature  of  the  thing  does  not  admit  of  any  other  alter- 
native. 

I  do  contend  that  our  Union  is  worth  this  purchase.  With  it  every 
individual  rests  secure  under  its  protection  against  foreign  or  domestic 
insult  and  oppression;  without  it  we  can  have  no  security  against  the 
oppression,  insult,  and  invasion  of  foreign  powers;  for  no  single  State 
is  of  importance  enough  to  be  an  object  of  treaty  with  them,  nor  if  it 
was,  could  it  bear  the  expense  of  such  treaties  or  support  any  character 
or  respect  in  a  dissevered  State,  but  must  lose  all  respectability  among 
the  nations  abroad. 

We  have  a  very  extensive  trade  which  cannot  be  carried  on  with 
security  and  advantage  without  treaties  of  commerce  and  alliance 
with  foreign  nations. 

We  have  an  extensive  western  territory  which  cannot  otherwise  be 


APPENDIX  545 

defended  against  the  invasion  of  foreign  nations  bordering  on  our     APPENDIX 
frontiers,  who  will  cover  it  with  their  own  inhabitants,  and  we  shall  lose  XI 

it  forever  and  our  extent  of  empire  be  thereby  restrained ;  and  what  is 
worse,  their  numerous  posterity  will  in  future  time  drive  ours  into  the 
sea,  as  the  Goths  and  Vandals  formerly  conquered  the  Romans  in  like 
circumstances,  unless  we  have  the  force  of  the  Union  to  repel  such  in- 
vasions. We  have,  without  the  Union,  no  security  againt  the  inroads 
and  wars  of  one  State  upon  another,  by  which  our  wealth  and  strength 
as  well  as  our  ease  and  comfort  will  be  devoured  by  enemies  growing 
out  of  our  own  bowels. 

I  conclude  then  that  our  Union  is  not  only  one  of  the  most  essential 
consequence  to  the  well-being  of  the  States  in  general,  but  to  that  of 
every  individual  citizen  of  them,  and,  of  course,  ought  to  be  supported 
and  made  as  useful  and  safe  as  possible  by  a  Constitution  which  admits 
that  full  energy  and  final  effect  of  government  which  alone  can  secure 
its  great  ends  and  uses. 

In  a  dissertation  of  this  sort  I  would  not  wish  to  descend  to  minutiae, 
yet  there  are  some  small  matters  which  have  important  consequences 
and  therefore  ought  to  be  noticed.  It  is  necessary  that  Congress  should 
have  all  usual  and  necessary  powers  of  self-preservation  and  order,  e.  g., 
to  imprison  for  contempt,  insult  or  interruption,  etc.,  and  to  expel 
their  own  members  for  due  causes,  among  which  I  would  rank  that  of 
non-attendance  on  the  house,  or  partial  attendance  without  such  excuse 
as  shall  satisfy  the  house. 

Where  there  is  such  vast  authority  and  trust  devolved  on  Congress 
and  the  grand  and  most  important  interests  of  the  Empire  rest  on  their 
decisions,  it  appears  to  me  highly  unreasonable  that  we  should  suffer 
their  august  consultations  to  be  suspended,  or  their  dignity,  authority 
and  influence  lessened  by  the  idleness,  neglect  and  non-attendance  of 
its  members;  for  we  know  that  the  acts  of  a  thin  house  do  not  usually 
carry  with  them  the  same  degree  of  weight  and  respect  as  those  of  a 
full  house. 

Besides,  I  think  when  a  man  is  deputed  a  delegate  in  Congress  and 
has  undertaken  the  business,  the  whole  Empire  becomes,  of  course, 
possessed  of  a  right  to  his  best  and  constant  services,  which  if  any  mem- 
ber refuses  or  neglects,  the  Empire  is  injured  and  ought  to  resent  the 
injury,  at  least  so  far  as  to  expel  and  send  him  home,  so  that  his  place 
may  be  better  supplied. 

I  have  one  argument  in  favor  of  my  whole  plan,  viz. :  it  is  so  formed 
that  no  men  of  dull  intellects  or  small  knowledge,  or  of  habits  too  idle 
for  constant  attendance,  or  close  and  steady  attention,  can  do  the 
business  with  any  tolerable  degree  of  respectability,  nor  can  they  find 
either  honor,  profit  or  satisfaction  in  being  there,  and,  of  course,  I  could 
wish  that  the  choice  of  the  electors  might  never  fall  on  such  a  man, 
or  if  it  should,  that  he  might  have  sense  enough  (of  pain  at  least,  if  not 
of  shame)  to  decline  his  acceptance. 

For  after  all  that  can  be  done  I  do  not  think  that  a  good  adminis- 
tration depends  wholly  on  a  good  Constitution  and  good  laws,  for  in- 


546  APPENDIX 

APPENDIX  sufficient  or  bad  men  will  always  make  bad  work  and  a  bad  adminis- 
XI  tration,  let  the  Constitution  and  laws  be  ever  so  good.  The  manage- 

ment of  able,  faithful  and  upright  men  alone  can  cause  an  administra- 
tion to  brighten,  and  the  dignity  and  wisdom  of  an  Empire  to  rise  into 
respect;  make  truth  the  line  and  measure  of  public  decision;  give  weight 
and  authority  to  the  government,  and  security  and  peace  to  the  subject. 

We  now  hope  that  we  are  on  the  close  of  a  war  of  mighty  effort  and 
great  distress  against  the  greatest  power  on  earth,  whetted  into  the 
most  keen  resentment  and  savage  fierceness  which  can  be  excited  by 
wounded  pride,  and  which  usually  rises  higher  between  brother  and 
brother  offended  than  between  strangers  in  contest.  Twelve  of  the 
Thirteen  United  States  have  felt  the  actual  and  cruel  invasions  of  the 
enemy,  and  eleven  of  our  capitals  have  been  under  their  power,  first 
or  last,  during  the  dreadful  conflict,  but  a  good  Providence,  our  own 
virtue  and  firmness,  and  the  help  of  our  friends  have  enabled  us  to  rise 
superior  to  all  the  powers  of  our  adversaries  and  make  them  seek  to  be 
at  peace  with  us. 

During  the  extreme  pressures  of  the  war  indeed  many  errors  in  our 
administration  have  been  committed  when  we  could  not  have  experi- 
ence and  time  for  reflection  to  make  us  wise,  but  these  will  easily  be 
excused,  forgiven  and  forgotten  if  we  can  now,  while  at  leisure,  find 
virtue,  wisdom,  and  foresight  enough  to  correct  them  and  form  such 
establishments  as  shall  secure  the  great  ends  of  our  Union  and  give 
dignity,  force,  utility  and  permanency  to  our  Empire. 

It  is  a  pity  we  should  lose  the  honor  and  blessings  which  have  cost 
us  so  dear  for  want  of  wisdom  and  firmness  in  measures  which  are 
essential  to  our  preservation.  It  is  now  at  our  option  either  to  fall  back 
into  our  original  atoms  or  form  such  an  union  as  shall  command  the 
respect  of  the  world  and  give  honor  and  security  to  our  people. 

This  vast  subject  lies  with  mighty  weight  on  my  mind,  and  I  have 
bestowed  on  it  my  utmost  attention  and  here  offer  the  public  the  best 
thoughts  and  sentiments  I  am  master  of.  I  have  confined  myself  in 
this  dissertation  entirely  to  the  nature,  reason  and  truth  of  my  subject 
without  once  adverting  to  the  reception  it  might  meet  with  from  men 
of  different  prejudices  or  interests.  To  find  the  truth,  not  to  carry  a 
point,  has  been  my  object. 

I  have  not  the  vanity  to  imagine  that  my  sentiments  may  be  adopted ; 
I  shall  have  all  the  reward  I  wish  or  expect  if  my  dissertation  shall 
throw  any  light  on  the  great  subject,  shall  excite  an  emulation  of  in- 
quiry and  animate  some  abler  genius  to  form  a  plan  of  greater  perfec- 
tion, less  objectionable  and  more  useful. 

PHILADELPHIA,  February  16,  1783. 


APPENDIX  547 

NOTES:  APPENDED  BY  PELATIAH  WEBSTER  TO  THE  REPUBLI- 
CATION  MADE  AT  PHILADELPHIA  IN  1 79 1 

NOTE  I 

Forming  a  plan  of  confederation  or  a  system  of  general  government     APPENDIX 
of  the  United  States  engrossed  the  attention  of  Congress  from  the          XI 
Declaration  of  Independence,  July  4,  1776,  till  the  same  was  completed 
by  Congress,  July  9,  1778,  and  recommended  to  the  several  States  for 
ratification,  which  finally  took  place  March  I,  1781,  from  which  time 
the  said  confederation  was  considered  as  the  grand  constitution  of  the 
general  government,  and  the  whole  administration  was  conformed  to  it. 

And  as  it  had  stood  the  test  of  discussion  in  Congress  for  two  years 
before  they  completed  and  adopted  it,  and  in  all  the  States  for  three 
years  more  before  it  was  finally  ratified,  one  would  have  thought  that 
it  must  have  been  a  very  finished  and  perfect  plan  of  government. 

But  on  trial  of  it  in  practice  it  was  found  to  be  extremely  weak, 
defective,  totally  inefficient,  and  altogether  inadequate  to  its  great 
ends  and  purposes,  for 

1.  It  blended  the  legislative  and  executive  powers  together  in  one 
body. 

2.  This  body,  viz. :  Congress,  consisted  of  but  one  house,  without  any 
check  upon  their  resolutions. 

3.  The  powers  of  Congress  in  very  few  instances  were  definitive  and 
final;  in  the  most  important  articles  of  government  they  could  do  no 
more  than  recommend  to  the  several  States,  the  consent  of  every  one 
of  which  was  necessary  to  give  legal  sanction  to  any  act  so  recommended. 

4.  They  could  assess  and  levy  no  taxes. 

5.  They  could  institute  and  execute  no  punishments  except  in  the 
military  department. 

6.  They  had  no  power  of  deciding  or  controlling  the  contentions  and 
disputes  of  different  States  with  each  other. 

7.  They  could  not  regulate  the  general  trade;  or, 

8.  Even  make  laws  to  secure  either  public  treaties  with  foreign  States, 
or  the  persons  of  public  ambassadors,  or  to  punish  violations  or  inju- 
ries done  to  either  of  them. 

9.  They  could  institute  no  general  judiciary  powers. 

10.  They  could  regulate  no  public  roads,  canals,  or  inland  navigation, 
etc.,  etc.,  etc. 

And  what  caps  all  the  rest  was  that  (whilst  under  such  an  ineffi- 
cient political  constitution  the  only  chance  we  had  of  any  tolerable 
administration  lay  wholly  in  the  prudence  and  wisdom  of  the  men  who 
happened  to  take  the  lead  in  our  public  councils)  it  was  fatally  pro- 
vided by  the  absurd  doctrine  of  rotation  that  if  any  member  of  Congress 
by  three  years'  experience  and  application  had  qualified  himself  to 
manage  our  public  affairs  with  consistency  and  fitness,  that  he  should 
be  constitutionally  and  absolutely  rendered  incapable  of  serving  any 


548  APPENDIX 

APPENDIX  longer  till  by  three  years'  discontinuance  he  had  pretty  well  lost  the 
XI  cue  or  train  of  the  public  counsels  and  forgot  the  ideas  and  plans  which 

made  his  service  useful  and  important  and,  in  the  mean  time,  his  place 
should  be  supplied  by  a  fresh  man,  who  had  the  whole  matter  to  learn, 
and  when  he  had  learned  it  was  to  give  place  to  another  fresh  man,  and 
so  on  to  the  end  of  the  chapter. 

The  sensible  mind  of  the  United  States  by  long  experience  of  the 
fatal  mischief  of  anarchy,  or  (which  is  about  the  same  thing)  of  this 
ridiculous  inefficient  form  of  government,  began  to  apprehend  that 
there  was  something  wrong  in  our  policy  which  ought  to  be  redressed 
and  mended,  but  nobody  undertook  to  delineate  the  necessary  amend- 
ments. 

I  was  then  pretty  much  at  leisure,  and  was  fully  of  opinion  (though 
the  sentiment  at  that  time  would  not  very  well  bear)  that  it  would  be 
ten  times  easier  to  form  a  new  constitution  than  to  mend  the  old  one. 
I  therefore  sat  myself  down  to  sketch  out  the  leading  principles  of  that 
political  constitution  which  I  thought  necessary  to  the  preservation 
and  happiness  of  the  United  States  of  America,  which  are  comprised 
in  this  Dissertation. 

I  hope  the  reader  will  please  consider  that  these  are  the  original 
thoughts  of  a  private  individual,  dictated  by  the  nature  of  the  subject 
only,  long  before  the  important  theme  became  the  great  object  of  dis- 
cussion in  the  most  dignified  and  important  assembly  which  ever  sat 
or  decided  in  America. 

NOTE  2 

At  the  time  when  this  Dissertation  was  written  (Feb.  16,  1783)  the 
defects  and  insufficiency  of  the  Old  Federal  Constitution  were  uni- 
versally felt  and  acknowledged.  It  was  manifest,  not  only  that  the 
internal  police,  justice,  security  and  peace  of  the  States  could  never  be 
preserved  under  it,  but  the  finances  and  public  credit  would  necessarily 
become  so  embarrassed,  precarious  and  void  of  support  that  no  public 
movement  which  depended  on  the  revenue  could  be  managed  with  any 
effectual  certainty;  but  though  the  public  mind  was  under  full  convic- 
tion of  all  these  mischiefs  and  was  contemplating  a  remedy,  yet  the 
public  ideas  were  not  at  all  concentrated,  much  less  arranged  into  any 
new  system  or  form  of  government  which  would  obviate  these  evils. 
Under  these  circumstances  I  offered  this  Dissertation  to  the  public. 
How  far  the  principles  of  it  were  adopted  or  rejected  in  the  New  Con- 
stitution, which  was  four  years  afterwards  (Sept.  17,  1787)  formed  by 
the  General  Convention  and  since  ratified  by  all  the  States,  is  obvious  to 
every  one. 

I  wish  here  to  remark  the  great  particulars  of  my  plan  which  were 
rejected  by  the  Convention. 

1.  My  plan  was  to  keep  the  legislative  and  executive  departments 
entirely  distinct;  the  one  to  consist  of  the  two  houses  of  Congress,  the 
other  to  rest  entirely  in  the  Grand  Council  of  State. 

2.  I  proposed  to  introduce  a  Chamber  of  Commerce,  to  consist  of 


APPENDIX  549 

merchants  who  should  be  consulted  by  the  legislature  in  all  matters  of     APPENDIX 
trade  and  revenue,  and  which  should  have  the  conducting  the  revenue          XI 
committed  to  them. 

The  first  of  these  the  Convention  qualified;  the  second  they  say 
nothing  of,  i.  e.,  take  no  notice  of  it. 

3.  I  proposed  that  the  great  officers  of  state  should  have  the  perusal 
of  all  bills  before  they  were  enacted  into  laws,  and  should  be  required 
to  give  their  opinion  of  them  as  far  as  they  affected  the  public  interest 
in  their  several  departments,  which  report  of  them  Congress  should  cause 
to  be  read  in  their  respective  houses  and  entered  on  their  minutes.  This 
is  passed  over  without  notice. 

4.  I  proposed  that  all  public  officers  appointed  by  the  executive  au- 
thority should  be  amenable  both  to  them  and  to  the  legislative  power, 
and  removable  for  just  cause  by  either  of  them.    This  is  qualified  by 
the  Convention. 

And  inasmuch  as  my  sentiments  in  these  respects  were  either  quali- 
fied or  totally  neglected  by  the  Convention,  I  suppose  they  were  wrong. 
However,  the  whole  matter  is  submitted  to  the  politicians  of  the  present 
age  and  to  our  posterity  in  future. 

In  sundry  other  things  the  Convention  have  gone  into  minutiae,  e.  g., 
respecting  elections  of  presidents,  senators,  and  representatives  in 
Congress,  etc.,  which  I  proposed  to  leave  at  large  to  the  wisdom  and 
discretion  of  Congress  and  of  the  several  States. 

Great  reasons  may  doubtless  be  assigned  for  their  decision,  and 
perhaps  some  little  ones  for  mine.  Time,  the  great  arbiter  of  all  human 
plans  may,  after  a  while,  give  his  decision;  but  neither  the  Convention 
nor  myself  will  probably  live  to  feel  either  the  exultation  or  mortifica- 
tion of  his  approbation  or  disapprobation  of  either  of  our  plans. 

But  if  any  of  these  questions  should  in  future  time  become  objects 
of  discussion,  neither  the  vast  dignity  of  the  Convention,  nor  the  low, 
unnoticed  state  of  myself,  will  be  at  all  considered  in  the  debates;  the 
merits  of  the  matter  and  the  interests  connected  with  or  arising  out  of 
it  will  alone  dictate  the  decision. 


XII 
THE  VIRGINIA  PLAN 

PRESENTED  TO  THE  FEDERAL  CONVENTION,  MAY  2Q,  1787,  BY 
EDMUND  RANDOLPH,  FROM  THE  TEXT  AS  PRINTED  IN  THE 
MADISON  PAPERS,  II,  731-735,  WITH  THE  THREE  LETTERS  OF 
MADISON  OF  MARCH  AND  APRIL  1787,  CONTAINING  THE  ONLY 
SKETCH  HE  SAYS  HE  EVER  MADE  OF  A  CONSTITUTION 

APPENDIX         i.  Resolved,  that  the  Articles  of  Confederation  ought  to  be  so  cor- 
XII  rected  and  enlarged  as  to  accomplish  the  objects  proposed  by  their 

institution;  namely,  common  defence,  security  of  liberty,  and  general 
welfare. 

2.  Resolved,  therefore,  that  the  rights  of  suffrage  in  the  National 
Legislature  ought  to  be  proportioned  to  the  quotas  of  contribution,  or 
to  the  number  of  free  inhabitants,  as  the  one  or  the  other  rule  may  seem 
best  in  different  cases. 

3.  Resolved,  that  the  National  Legislature  ought  to  consist  of  two 
branches. 

4.  Resolved,  that  the  members  of  the  first  branch  of  the  National 
Legislature  ought  to  be  elected  by  the  people  of  the  several  States  every 

for  the  term  of ;  to  be  of  the  age  of years  at  least ; 

to  receive  liberal  stipends  by  which  they  may  be  compensated  for  the 
devotion  of  their  time  to  the  public  service;  to  be  ineligible  to  any  office 
established  by  a  particular  State,  or  under  the  authority  of  the  United 
States,  except  those  peculiarly  belong  to  the  functions  of  the  first 

branch,  during  the  term  of  service,  and  for  the  space  of after  its 

expiration;  to  be  incapable  of  re-election  for  the  space  of —  after 

the  expiration  of  their  term  of  service,  and  to  be  subject  to  recall. 

5.  Resolved,  that  the  members  of  the  second  branch  of  the  National 
Legislature  ought  to  be  elected  by  those  of  the  first,  out  of  a  proper 
number  of  persons  nominated  by  the  individual  Legislatures,  to  be  of 

the  age  of years  at  least;  to  hold  their  offices  for  a  term  sufficient 

to  ensure  their  independency ;  to  receive  liberal  stipends,  by  which  they 
may  be  compensated  for  the  devotion  of  their  time  to  the  public  service ; 
and  to  be  ineligible  to  any  office  established  by  a  particular  State,  or 
under  the  authority  of  the  United  States,  except  those  peculiarly  be- 
longing to  the  functions  of  the  second  branch,  during  the  term  of  serv- 
ice; and  for  the  space  of after  the  expiration  thereof. 

6.  Resolved,  that  each  branch  ought  to  possess  the  right  of  originating 
acts;  that  the  National  Legislature  ought  to  be  empowered  to  enjoy 
the  legislative  rights  vested  in  Congress  by  the  Confederation,  and 
moreover  to  legislate  in  all  cases  to  which  the  separate  States  are  in- 


APPENDIX  551 

competent,  or  in  which  the  harmony  of  the  United  States  may  be  inter-     APPENDIX 
rupted  by  the  exercise  of  individual  legislation;  to  negative  all  laws         XII 
passed  by  the  several  States  contravening,  in  the  opinion  of  the  Na- 
tional Legislature,  the  Articles  of  Union,  or  any  treaty  subsisting 
under  the  authority  of  the  Union;  and  to  call  forth  the  force  of  the 
Union  against  any  member  of  the  Union  failing  to  fulfil  its  duty  under 
the  Articles  thereof. 

7.  Resolved,  that  a  National  Executive  be  instituted ;  to  be  chosen  by 

the  National  Legislature  for  the  term  of ;  to  receive  punctually, 

at  stated  times,  a  fixed  compensation  for  the  services  rendered,  in  which 
no  increase  nor  diminution  shall  be  made,  so  as  to  affect  the  magistracy 
existing  at  the  time  of  increase  or  diminution;  and  to  be  ineligible  a 
second  time;  and  that,  besides  a  general  authority  to  execute  the  na- 
tional laws,  it  ought  to  enjoy  the  executive  rights  vested  in  Congress 
by  the  Confederation. 

8.  Resolved,  that  the  Executive,  and  a  convenient  number  of  the 
national  Judiciary,  ought  to  compose  a  Council  of  Revision,  with 
authority  to  examine  every  act  of  the  National  Legislature,  before  it 
shall  operate,  and  every  act  of  a  particular  Legislature  before  a  nega- 
tive thereon  shall  be  final ;  and  that  the  dissent  of  the  said  Council  shall 
amount  to  a  rejection,  unless  the  act  of  the  National  Legislature  be 
again  passed,  or  that  of  a  particular  Legislature  be  again  negatived  by 
of  the  members  of  each  branch. 

9.  Resolved,  that  a  National  Judiciary  be  established;  to  consist  of 
one  or  more  supreme  tribunals,  and  of  inferior  tribunals  to  be  chosen  by 
the  National  Legislature;  to  hold  their  offices  during  good  behaviour, 
and  to  receive  punctually,  at  stated  times,  fixed  compensation  for  their 
services,  in  which  no  increase  or  diminution  shall  be  made,  so  as  to  affect 
the  persons  actually  in  office  at  the  time  of  such  increase  or  diminution. 
That  the  jurisdiction  of  the  inferior  tribunals  shall  be  to  hear  and  deter- 
mine, in  the  first  instance,  and  of  the  supreme  tribunal  to  hear  and 
determine,  inthe  dernier  ressort,  all  piracies  and  felonies  on  the  high  seas; 
captures  from  an  enemy;  cases  in  which  foreigners,  or  citizens  of  other 
States,  applying  to  such  jurisdictions,  may  be  interested;  or  which 
respect  the  collection  of  the  national  revenue;  impeachments  of  any 
national  officers,  and  questions  which  may  involve  the  national  peace 
and  harmony. 

~  10.  Resolved,  that  provision  ought  to  be  made  for  the  admission  of 
States  lawfully  arising  within  the  limits  of  the  United  States,  whether 
from  a  voluntary  junction  of  government  and  territory,  or  otherwise, 
with  the  consent  of  a  number  of  voices  in  the  National  Legislature  less 
than  the  whole. 

n.  Resolved,  that  a  republican  government,  and  the  territory  of  each 
State,  except  in  the  instance  of  a  voluntary  junction  of  government  and 
territory,  ought  to  be  guaranteed  by  the  United  States  to  each  State. 

12.  Resolved,  that  provision  ought  to  be  made  for  the  continuance  of 
Congress  and  their  authorities  and  privileges,  until  a  given  day  after 
the  reform  of  the  Articles  of  Union  shall  be  adopted,  and  for  the  com- 
pletion of  all  their  engagements. 


552  APPENDIX 

APPENDIX          13.  Resolved,  that  provision  ought  to  be  made  for  the  amendment  of 
XII  the  Articles  of  Union,  whensoever  it  shall  seem  necessary;  and  that  the 

assent  of  the  National  Legislature  ought  not  to  be  required  thereto. 

14.  Resolved,  that  the  legislative,  executive,  and  judiciary  powers, 
within  the  several  States  ought  to  be  bound  by  oath  to  support  the 
Articles  of  Union. 

15.  Resolved,  that  the  amendments  which  shall  be  offered  to  the  Con- 
federation, by  the  Convention  ought,  at  a  proper  time  or  times,  after 
the  approbation  of  Congress,  to  be  submitted  to  an  assembly  or  assem- 
blies of  representatives,  recommended  by  the  several  Legislatures    to 
be  expressly  chosen  by  the  people  to  consider  and  decide  thereon.  .  .  . 
It  was  then  resolved,  that  the  House  will  to-morrow  resolve  itself  into  a 
Committee  of  the  Whole  House,  to  consider  of  the  state  of  the  American 
Union ;  and  that  the  propositions  moved  by  Mr.  Randolph  be  referred  to 
said  Committee. 

B 

THE   PERSONAL  CLAIM    OF   MADISON 

In  the  "Introduction  to  the  Debates  in  the  Convention"  1  occurs 
the  following:  "As  a  sketch  on  paper,  the  earliest,  perhaps,  of  a  Con- 
stitutional Government  for  the  Union  (organized  into  regular  depart- 
ments, with  physical  means  operating  on  individuals)  to  be  sanctioned 
by  the  people  of  the  States,  acting  in  their  original  and  sovereign  char- 
acter, was  contained  in  the  letters  of  James  Madison  to  Thomas  Jeffer- 
son of  the  nineteenth  of  March;  to  Governor  Randolph  of  the  eighth  of 
April;  and  to  General  Washington  of  the  sixteenth  of  April,  1787,  for 
which  see  their  respective  dates."  Thus  it  appears  that  the  earliest 
sketch  of  a  constitution  Madison  claims  to  have  made  is  embodied  in 
these  three  letters,  printed  below,  written  in  March  and  April,  1787, 
—  more  than  four  years  after  the  publication  at  Philadelphia  on 
February  i6th,  1783  (at  a  time  when  Madison  was  actually  present 
in  that  city  as  a  member  of  the  Continental  Congress),  of  Pelatiah 
Webster's  epoch-making  paper  of  that  date. 

MADISON   TO  JEFFERSON 

NEW  YORK,  March  19,  1787. 

DEAR  SIR,  Congress  have  continued  so  thin  as  to  be  incompetent  to 
the  dispatch  of  the  more  important  business  before  them.  We  have  at 
present  nine  states,  and  it  is  not  improbable  that  something  may  now  be 
done.  The  report  of  Mr.  Jay  on  the  mutual  violations  of  the  treaty  of 
peace  will  be  among  the  first  subjects  of  deliberation.  He  favors  the 
British  claim  of  interest,  but  refers  the  question  to  the  court.  The 
amount  of  the  report,  which  is  an  able  one,  is,  that  the  treaty  should  be 
put  in  force  as  a  law,  and  the  exposition  of  it  left,  like  that  of  other  laws, 
to  the  ordinary  tribunals. 

1  The  Madison  Papers,  ii,  714. 


APPENDIX  553 

The  Spanish  project  sleeps.  A  perusal  of  the  attempt  of  seven  states  APPENDIX 
to  make  a  new  treaty,  by  repealing  an  essential  condition  of  the  old,  XII 
satisfied  me  that  Jay's  caution  would  revolt  at  so  irregular  a  sanction. 
A  late  accidental  conversation  with  Guardoqui  proved  to  me  that  the 
negotiation  is  arrested.  It  may  appear  strange  that  a  member  of  Con- 
gress should  be  indebted  to  a  foreign  Minister  for  such  information, 
yet  such  is  the  footing  on  which  the  intemperance  of  party  has  put  the 
matter,  that  it  rests  wholly  with  Mr.  Jay  how  far  he  will  communicate 
with  Congress,  as  well  as  how  far  he  will  negotiate  with  Guardoqui. 
But  although  it  appears  that  the  intended  sacrifice  of  the  Mississippi 
will  not  be  made,  the  consequences  of  the  intention  and  the  attempt 
are  likely  to  be  very  serious.  I  have  already  made  known  to  you  the 
light  in  which  the  subject  was  taken  up  by  Virginia.  Mr.  Henry's  dis- 
gust exceeds  all  measure,  and  I  am  not  singular  in  ascribing  his 
refusal  to  attend  the  Convention  to  the  policy  of  keeping  himself  free 
to  combat  or  espouse  the  result  of  it  according  to  the  result  of  the 
Mississippi  business,  among  other  circumstances.  North  Carolina  also 
has  given  pointed  instructions  to  her  Delegates;  so  has  New  Jersey. 
A  proposition  for  the  like  purpose  was  a  few  days  ago  made  in  the  Leg- 
islature of  Pennsylvania,  but  went  off  without  a  decision  on  its  merits. 
Her  Delegates  in  Congress  are  equally  divided  on  the  subject.  The 
tendency  of  this  project  to  foment  distrust  among  the  Atlantic  States, 
at  a  crisis  when  harmony  and  confidence  ought  to  have  been  studi- 
ously cherished,  has  not  been  more  verified  than  its  predicted  effect  on 
the  ultramontane  settlements.  I  have  credible  information  that  the 
people  living  on  the  Western  waters  are  already  in  great  agitation,  and 
are  taking  measures  for  uniting  their  consultations.  The  ambition  of 
individuals  will  quickly  mix  itself  with  the  original  motives  of  resent- 
ment and  interest.  Communication  will  gradually  take  place  with  their 
British  neighbors.  They  will  be  led  to  set  up  for  themselves,  to  seize  on 
the  vacant  lands,  to  entice  emigrants  by  bounties  and  an  exemption  from 
Federal  burthens,  and  in  all  respects  play  the  part  of  Vermont  on  a 
large  theatre.  It  is  hinted  to  me  that  British  partizans  are  already  feel- 
ing the  pulse  of  some  of  the  Western  settlements.  Should  these  appre- 
hensions not  be  imaginary,  Spain  may  have  equal  reason  with  the 
United  States  to  rue  the  unnatural  attempt  to  shut  the  Mississippi. 
Guardoqui  has  been  admonished  of  the  danger,  and,  I  believe,  is  not 
insensible  to  it,  though  he  affects  to  be  otherwise,  and  talks  as  if  the 
dependence  of  Britain  on  the  commercial  favors  of  his  Court  would 
induce  her  to  play  into  the  hands  of  Spain.  The  eye  of  France  also  can- 
not fail  to  watch  over  the  western  prospects.  I  learn  from  those  who 
confer  here  with  Otto  and  De  la  Forest,  that  they  favor  the  opening 
of  the  Mississippi,  disclaiming  at  the  same  time  any  authority  to  speak 
the  sentiments  of  their  Court.  I  find  that  the  Virginia  Delegates,  during 
the  Mississippi  discussions  last  fall,  entered  into  very  confidential  inter- 
views with  these  gentlemen.  In  one  of  them  the  idea  was  communi- 
cated to  Otto  of  opening  the  Mississippi  for  exports  but  not  for  imports, 
and  of  giving  to  France  and  Spain  some  exclusive  privileges  in  the  trade. 


554  APPENDIX 

APPENDIX     He  promised  to  transmit  it  to  Vergennes,  to  obtain  his  sentiments  on 
XII  the  whole  matter,  and  to  communicate  them  to  the  Delegates.  Not  long 

since  Grayson  called  on  him,  and  revived  the  subject.  He  assured 
Grayson  that  he  had  received  no  answer  from  France,  and  signified  his 
wish  that  you  might  pump  the  Count  de  Vergennes,  observing  that 
he  would  deny  to  you  his  having  received  any  information  from  America. 
I  discover,  through  several  channels,  that  it  would  be  very  grateful  to 
the  French  politicians  here  to  see  our  negotiations  with  Spain  shifted  into 
your  hands  and  carried  on  under  the  mediating  auspices  of  their  Court. 

Van  Berkel  has  remonstrated  against  the  late  acts  of  Virginia,  giving 
privileges  to  French  wines  and  brandies  in  French  bottoms,  contending 
that  the  Dutch  are  entitled  by  their  treaty  to  equal  exemptions  with  the 
most  favored  nation,  without  being  subject  to  a  compensation  for  them. 
Mr.  Jay  has  reported  against  this  construction,  but  considers  the  act  of 
Virginia  as  violating  the  treaty ;  —  first,  as  it  appears  to  be  gratuitous, 
not  compensatory,  on  the  face  of  it;  secondly,  because  the  States  have 
no  right  to  form  tacit  compacts  with  foreign  nations.  No  decision  of 
Congress  has  yet  taken  place  on  the  subject. 

The  expedition  of  General  Lincoln  against  the  insurgents  has  effectu- 
ally succeeded  in  dispersing  them.  Whether  the  calm  which  he  has 
restored  will  be  durable  or  not,  is  uncertain.  From  the  precautions 
taken  by  the  Government  of  Massachusetts,  it  would  seem  as  if  their 
apprehensions  were  not  extinguished.  Besides  disarming  and  disfranchis- 
ing, for  a  limited  time,  those  who  have  been  in  arms,  as  a  condition  of  their 
pardon,  a  military  corps  is  to  be  raised  to  the  amount  of  one  thousand 
or  fifteen  hundred  Men,  and  to  be  stationed  in  the  most  suspected  dis- 
tricts. It  is  said  that  notwithstanding  these  specimens  of  the  temper 
of  the  Government,  a  great  proportion  of  the  offenders  choose  rather  to 
risk  the  consequences  of  their  treason,  than  submit  to  the  conditions 
annexed  to  the  amnesty;  that  they  not  only  appear  openly  on  public 
occasions,  but  distinguish  themselves  by  badges  of  their  character;  and 
that  this  insolence  is  in  many  instances  countenanced  by  no  less  decisive 
marks  of  popular  favor  than  elections  to  local  offices  of  trust  and 
authority. 

A  proposition  is  before  the  Legislature  of  this  State,  now  sitting,  for 
renouncing  its  pretensions  to  Vermont,  and  urging  the  admission  of  it 
into  the  Confederacy.  The  different  parties  are  not  agreed  as  to  the 
form  in  which  the  renunciation  should  be  made,  but  are  likely  to  agree 
as  to  the  substance.  Should  the  offer  be  made,  and  should  Vermont  not 
reject  it  altogether,  I  think  they  will  insist  on  two  stipulations  at  least; 
—  first,  that  their  becoming  parties  to  the  Confederation  shall  not  sub- 
ject their  boundaries,  or  the  rights  of  their  citizens,  to  be  questioned 
under  the  ninth  Article;  secondly,  that  they  shall  not  be  subject  to  any 
part  of  the  public  debts  already  contracted. 

The  Geographer  and  his  assistants  have  returned  surveys  on  the 
Federal  lands  to  the  amount  of  about  eight  hundred  thousand  acres, 
which  it  is  supposed  would  sell  pretty  readily  for  public  securities,  and 
some  of  it,  lying  on  the  Ohio,  even  for  specie.  It  will  be  difficult,  how- 


APPENDIX  555 

ever,  to  get  proper  steps  taken  by  Congress,  so  many  of  the  States  hav-     APPENDIX 
ing  lands  of  their  own  at  market.  It  is  supposed  that  this  consideration          XII 
had  some  share  in  the  zeal  for  shutting  the  Mississippi.  New  Jersey,  and 
some  others  having  no  Western  lands,  which  favored  this  measure, 
begin  now  to  penetrate  the  secret.  A  letter  from  the  Governor  of  Vir- 
ginia informs  me,  that  the  project  of  paper-money  is  beginning  to 
recover  from  the  blow  given  it  at  the  last  session  of  the  Legislature.  If 
Mr.  Henry  espouses  it,  of  which  there  is  little  doubt,  I  think  an  emission 
will  take  place. 

MADISON   TO   RANDOLPH 

NEW  YORK,  April  8,  1787. 
DEAR  SIR, 

Your  two  favors  of  the  twenty-second  and  twenty-seventh  of  March, 
have  been  received  since  my  last.  In  a  preceding  one  you  ask,  what 
tribunal  is  to  take  cognizance  of  Clark's  offence?  If  our  own  laws  will 
not  reach  it,  I  see  no  possibility  of  punishing  it.  But  will  it  not  come 
within  the  act  of  the  last  session  concerning  treasons  and  other  offences 
committed  without  the  commonwealth?  I  have  had  no  opportunity 
yet  of  consulting  Mr.  Otto  on  the  allegation  of  Osier  touching  the  mar- 
riage of  French  subjects  in  America.  What  is  the  conspicuous  prosecu- 
tion which  you  suspect  will  shortly  display  a  notable  instance  of  perjury? 

I  am  glad  to  find  that  you  are  turning  your  thoughts  towards  the 
business  of  May  next.  My  despair  of  your  finding  the  necessary  leisure 
as  signified  in  one  of  your  letters,  with  the  probability  that  some  lead- 
ing propositions  at  least  would  be  expected  from  Virginia  had  engaged 
me  in  a  closer  attention  to  the  subject  than  I  should  otherwise  have 
given.  I  will  just  hint  the  ideas  that  have  occurred,  leaving  explanations 
for  interview. 

I  think  with  you,  that  it  will  be  well  to  retain  as  much  as  possible  of 
the  old  Confederation,  though  I  doubt  whether  it  may  not  be  best  to 
work  the  valuable  articles  into  the  new  system,  instead  of  engrafting 
the  latter  on  the  former.  I  am  also  perfectly  of  your  opinion,  that,  in 
framing  a  system,  no  material  sacrifices  ought  to  be  made  to  local  or 
temporary  prejudices.  An  explanatory  address  must  of  necessity  ac- 
company the  result  of  the  Convention  on  the  main  object.  I  am  not 
sure  that  it  will  be  practicable  to  present  the  several  parts  of  the  re- 
form in  so  detached  a  manner  to  the  States,  as  that  a  partial  adoption 
will  be  binding.  Particular  States  may  view  different  articles  as  con- 
ditions of  each  other,  and  would  only  ratify  them  as  such.  Others  might 
ratify  them  as  independent  propositions.  The  consequence  would  be 
that  the  ratifications  of  both  would  go  for  nothing.  I  have  not,  how- 
ever, examined  this  point  thoroughly.  In  truth,  my  ideas  of  a  reform 
strike  so  deeply  at  the  old  Confederation,  and  lead  to  such  a  system- 
atic change,  that  they  scarcely  admit  of  the  expedient. 

I  hold  it  for  a  fundamental  point,  that  an  individual  independence  of 
the  States  is  utterly  irreconcilable  with  the  idea  of  an  aggregate  sover- 
eignty. I  think,  at  the  same  time,  that  a  consolidation  of  the  States 


556  APPENDIX 

APPENDIX      into  one  simple  republic  is  not  less  unattainable  than  it  would  be  in- 

XII  expedient.  Let  it  be  tried,  then,  whether  any  middle  ground  can  be 

taken,  which  will  at  once  support  a  due  supremacy  of  the  national 

authority,  and  leave  in  force  the  local  authorities  so  far  as  they  can  be 

subordinately  useful. 

The  first  step  to  be  taken  is,  I  think,  a  change  in  the  principle  of 
representation.  According  to  the  present  form  of  the  Union  an  equality 
of  suffrage,  if  not  just  towards  the  larger  members  of  it,  is  at  least  safe 
to  them,  as  the  liberty  they  exercise  of  rejecting  or  executing  the  acts 
of  Congress,  is  uncontrollable  by  the  nominal  sovereignty  of  Congress. 
Under  a  system  which  would  operate  without  the  intervention  of  the 
States,  the  case  would  be  materially  altered.  A  vote  from  Delaware 
would  have  the  same  effect  as  one  from  Massachusetts  or  Virginia. 

Let  the  National  Government  be  armed  with  a  positive  and  complete 
authority  in  all  cases  where  uniform  measures  are  necessary,  as  in 
trade,  etc.,  etc.  Let  it  also  retain  the  powers  which  it  now  possesses. 

Let  it  have  a  negative,  in  all  cases  whatsoever,  on  the  Legislative 
acts  of  the  States,  as  the  King  of  Great  Britain  heretofore  had.  This  I 
conceive  to  be  essential  and  the  least  possible  abridgement  of  the  State 
sovereignties.  Without  such  a  defensive  power,  every  positive  power 
that  can  be  given  on  paper  will  be  unavailing.  It  will  also  give  internal 
stability  to  the  States.  There  has  been  no  moment  since  the  peace 
at  which  the  Federal  assent  would  have  been  given  to  paper  money  — 
etc.,  etc. 

Let  this  national  supremacy  be  extended  also  to  the  Judiciary  de- 
partment. If  the  Judges  in  the  last  resort  depend  on  the  States,  and 
are  bound  by  their  oaths  to  them,  and  not  to  the  Union,  the  intention 
of  the  law  and  the  interests  of  the  nation  may  be  defeated  by  the  ob- 
sequiousness of  the  tribunals  to  the  policy  or  prejudices  of  the  States. 
It  seems  at  least  essential  that  an  appeal  should  lie  to  some  national 
tribunals  in  all  cases  which  concern  foreigners  or  inhabitants  of  other 
States.  The  admiralty  jurisdiction  may  be  fully  submitted  to  the 
National  Government. 

A  Government  formed  of  such  extensive  powers  ought  to  be  well  or- 
ganized. The  Legislative  department  may  be  divided  into  two  branches. 

One  of  them  to  be  chosen  every years  by  the  Legislatures  or  the 

people  at  large;  the  other  to  consist  of  a  more  select  number,  holding 
their  appointments  for  a  longer  term,  and  going  out  in  rotation.  Per- 
haps the  negative  on  the  State  laws  may  be  most  conveniently  lodged 
in  this  branch.  A  council  of  Revision  may  be  superadded,  including 
the  great  ministerial  officers.  ? 

A  national  Executive  will  also  be  necessary.  I  have  scarcely  ventured 
to  form  my  own  opinion  yet,  either  of  the  manner  in  which  it  ought  to 
be  constituted,  or  of  the  authorities  with  which  it  ought  to  be  clothed. 

An  article  ought  to  be  inserted  expressly  guaranteeing  the  tranquil- 
ity  of  the  States  against  internal  as  well  as  external  dangers. 

To  give  the  new  system  its  proper  energy,  it  will  be  desirable  to  have 
it  ratified  by  the  authority  of  the  people,  and  not  merely  by  that  of  the 
Legislatures. 


APPENDIX  557 

I  am  afraid  you  will  think  this  project  if  not  extravagant,  absolutely  APPENDIX 
unattainable  and  unworthy  of  being  attempted.  Conceiving  it  my-  XII 
self  to  go  no  further  than  is  essential,  the  objections  drawn  from  this 
source  are  to  be  laid  aside.-  I  flatter  myself,  however,  that  they  may 
be  less  formidable  on  trial  than  in  contemplation.  The  change  in  the 
principle  of  representation  will  be  relished  by  a  majority  of  the  States, 
and  those  too  of  most  influence.  The  Northern  States  will  be  recon- 
ciled to  it  by  the  actual  superiority  of  their  populousness ;  the  South- 
ern by  their  expected  superiority  on  this  point.  This  principle  estab- 
lished, the  repugnance  of  the  large  States  to  part  with  power  will  in 
a  great  degree  subside,  and  the  smaller  States  must  ultimately  yield 
to  the  predominant  will.  It  is  also  already  seen  by  many,  and  must  by 
degrees  be  seen  by  all,  that,  unless  the  Union  be  organized  efficiently  on 
republican  principles,  innovations  of  a  much  more  objectionable  form 
may  be  obtruded;  or,  in  the  most  favorable  event,  the  partition  of 
the  Empire,  into  rival  and  hostile  confederacies  will  ensue. 

MADISON  TO  WASHINGTON 

NEW  YORK,  16  April  1787 
DEAR  SIR, 

I  have  been  honored  with  your  letter  of  the  3ist  of  March, 
and  find  with  much  pleasure,  that  your  views  of  the  reform,  which  ought 
to  be  pursued  by  the  convention,  give  a  sanction  to  those  which  I  have 
entertained.  Temporizing  applications  will  dishonor  the  councils, 
which  propose  them,  and  may  foment  the  internal  malignity  of  the 
disease,  at  the  same  time  that  they  produce  an  ostensible  palliation  of 
it.  Radical  attempts,  although  unsuccessful,  will  at  least  justify  the 
authors  of  them. 

Having  been  lately  led  to  revolve  the  subject,  which  is  to  undergo 
the  discussion  of  the  convention,  and  formed  in  my  mind  some  outlines 
of  a  new  system,  I  take  the  liberty  of  submitting  them  without  apology 
to  your  eye.  Conceiving  that  an  individual  independence  of  the  States 
is  totally  irreconcilable  with  their  aggregate  sovereignty,  and  that  a 
consolidation  of  the  whole  into  one  simple  republic  would  be  as  inex- 
pedient as  it  is  unattainable,  I  have  sought  for  some  middle  ground, 
which  may  at  once  support  a  due  supremacy  of  the  national  authority, 
and  not  exclude  the  local  authorities  wherever  they  can  be  subordin- 
ately  useful. 

I  would  propose  as  the  ground-work,  that  a  change  be  made  in  the 
principle  of  representation.  According  to  the  present  form  of  the  Union, 
in  which  the  intervention  of  the  States  is  in  all  great  cases  necessary 
to  effectuate  the  measures  of  Congress,  an  equality  of  suffrage  does 
not  destroy  the  inequality  of  importance  in  the  several  members.  No 
one  will  deny,  that  Virginia  and  Massachusetts  have  more  weight  and 
influence,  both  within  and  without  Congress,  than  Delaware  or  Rhode 
Island.  Under  a  system,  which  would  operate  in  many  essential 
points  without  the  intervention  of  the  State  legislatures,  the  case  would 


558  APPENDIX 

APPENDIX  be  materially  altered.  A  vote  in  the  national  councils  from  Delaware 
XII  would  then  have  the  same  effect  and  value,  as  one  from  the  largest 

State  in  the  Union.  I  am  ready  to  believe,  that  such  a  change  will 
not  be  attended  with  much  difficulty,  a  majority  of  the  States,  and  those 
of  the  greatest  influence,  will  regard  it  as  favorable  to  them.  To  the 
Northern  States  it  will  be  recommended  by  their  present  populousness; 
to  the  Southern,  by  their  expected  advantage  in  this  respect.  The  lesser 
States  must  in  every  event  yield  to  the  predominant  will.  But  the  con- 
sideration, which  particularly  urges  a  change  in  the  representation, 
is,  that  it  will  obviate  the  principal  objections  of  the  larger  States  to 
the  necessary  concessions  of  power. 

I  would  propose  next,  that,  in  addition  to  the  present  federal  powers, 
the  national  government  should  be  armed  with  positive  and  complete 
authority  in  all  cases,  which  require  uniformity;  such  as  the  regulation 
of  trade,  including  the  right  of  taxing  both  exports  and  imports,  the 
fixing  of  the  terms  and  forms  of  naturalization,  etc. 

Over  and  above  this  positive  power,  a  negative  in  all  cases  whatso- 
ever on  the  legislative  acts  of  the  States,  as  heretofore  exercised  by  the 
kingly  prerogative,  appears  to  me  to  be  absolutely  necessary,  and  to  be 
the  least  possible  encroachment  on  the  State  jurisdictions.  Without 
this  defensive  power,  every  positive  power,  that  can  be  given  on  paper, 
will  be  evaded  and  defeated.  The  States  will  continue  to  invade  the 
national  jurisdiction,  to  violate  treaties  and  the  law  of  nations,  and  to 
harass  each  other  with  rival  and  spiteful  measures,  dictated  by  mis- 
taken views  of  interest.  Another  happy  effect  of  this  prerogative, 
would  be  its  control  over  the  internal  vicissitudes  of  State  policy,  and 
the  aggressions  of  interested  majorities  on  the  rights  of  minorities  and 
of  individuals.  The  great  desideratum  which  has  not  yet  been  found  for 
republican  governments,  seems  to  be  some  disinterested  and  dispas- 
sionate umpire  in  disputes  between  different  passions  and  interests 
in  the  State.  The  majority,  who  alone  have  the  right  of  decision,  have 
frequently  an  interest  real  or  supposed  in  abusing  it.  In  monarchies 
the  sovereign  is  more  neutral  to  the  interests  and  views  of  different 
parties;  but  unfortunately  he  too  often  forms  interests  of  his  own, 
repugnant  to  those  of  the  whole.  Might  not  the  national  prerogative 
here  suggested  be  found  sufficiently  disinterested  for  the  decision  of 
local  questions  of  policy,  whilst  it  would  itself  be  sufficiently  restrained 
from  the  pursuit  of  interests  adverse  to  those  of  the  whole  society? 
There  has  not  been  any  moment  since  the  peace,  at  which  the  represent- 
atives of  the  Union  would  have  given  an  assent  to  paper  money  or 
any  other  measure  of  a  kindred  nature. 

The  national  supremacy  ought  also  to  be  extended,  as  I  conceive, 
to  the  judiciary  departments.  If  those,  who  are  to  expound  and  apply 
the  laws,  are  connected  by  their  interests  and  their  oaths  with  the  par- 
ticular States  wholly,  and  not  with  the  Union,  the  participation  of  the 
Union  in  the  making  of  the  laws  may  be  possibly  rendered  unavailing. 
It  seems,  at  least,  necessary  that  the  oaths  of  the  Judges  should  include 
a  fidelity  to  the  general  as  well  as  local  constitution,  and  that  an  appeal 


APPENDIX  559 

should  lie  to  some  national  tribunals  in  all  cases  to  which  foreigners     APPENDIX 
or  inhabitants  of  other  States  may  be  parties.  The  admiralty  jurisdic-          XII 
tion  seems  to  fall  entirely  within  the  purview  of  the  national  govern- 
ment.  The  national  supremacy  in  the  executive  departments  is  liable 
to  some  difficulty,  unless  the  officers  administering  them  could  be  made 
appointable  by  the  supreme  government.   The  militia  ought  certainly 
to  be  placed,  in  some  form  or  other,  under  the  authority  which  is  en- 
trusted with  the  general  protection  and  defence. 

A  government  composed  of  such  extensive  powers  should  be  well 
organized  and  balanced.  The  legislative  department  might  be  divided 
into  two  branches,  one  of  them  chosen  every years  by  the  peo- 
ple at  large,  or  by  the  legislatures;  the  other  to  consist  of  fewer  mem- 
bers, to  hold  their  places  for  a  longer  term,  and  to  go  out  in  such  a 
rotation  as  always  to  leave  in  office  a  large  majority  of  old  members. 
Perhaps  the  negative  on  the  laws  might  be  most  conveniently  exercised 
by  this  branch.  As  a  further  check,  a  council  of  revision  including  the 
great  ministerial  officers,  might  be  superadded. 

A  national  executive  must  also  be  provided.  I  have  scarcely  ventured 
as  yet  to  form  my  own  opinion  either  of  the  manner  in  which  it  ought 
to  be  constituted,  or  of  the  authorities  with  which  it  ought  to  be  clothed. 
An  article  should  be  inserted  expressly  guarantying  the  tranquillity 
of  the  States  against  internal  as  well  as  external  dangers. 

In  like  manner  the  right  of  coercion  should  be  expressly  declared. 
With  the  resources  of  commerce  in  hand,  the  national  administration 
might  always  find  means  of  exerting  it  either  by  sea  or  land.  But  the 
difficulty  and  awkwardness  of  operating  by  force  on  the  collective  will 
of  a  State  render  it  particularly  desirable,  that  the  necessity  of  it  might 
be  precluded. 

Perhaps  the  negative  on  the  laws  might  create  such  a  mutuality  of 
dependence  between  the  general  and  particular  authorities,  as  to  answer 
this  purpose;  or  perhaps  some  defined  objects  of  taxation  might  be 
submitted,  along  with  commerce,  to  the  general  authority. 

To  give  a  new  system  its  proper  validity  and  energy,  a  ratification 
must  be  obtained  from  the  people,  and  not  merely  from  the  ordinary 
authority  of  the  legislatures.  This  will  be  the  more  essential,  as  in- 
roads on  the  existing  constitutions  of  the  States  will  be  unavoidable. 

The  enclosed  address  to  the  States  on  the  subject  of  the  treaty  of 
peace  has  been  agreed  to  by  Congress,  and  forwarded  to  the  several 
executives.  We  foresee  the  irritation,  which  it  will  excite  in  many  of  our 
countrymen;  but  could  not  withhold  our  approbation  of  the  measure. 
Both  the  resolutions  on  the  addresses  passed  without  a  dissenting  voice. 

Congress  continues  to  be  thin,  and  of  course  to  do  little  business  of 
importance. 

The  settlement  of  the  public  accounts,  the  disposition  of  the  public 
lands,  and  arrangements  with  Spain,  are  subjects  which  claim  their 
particular  attention.  As  a  step  towards  the  first,  the  treasury  board 
are  charged  with  the  task  of  reporting  a  plan  by  which  the  final  decision 
on  the  claims  of  the  States  will  be  handed  over  from  Congress  to  a  select 


560  APPENDIX 

APPENDIX  set  of  men,  bound  by  the  oaths,  and  clothed  with  the  powers,  of  chan- 
XII  cellors.  As  to  the  second  article,  Congress  have  it  themselves  under 

consideration.  Between  six  and  seven  thousand  acres  have  been  sur- 
veyed, and  are  ready  for  sale.  The  mode  of  sale,  however,  will  probably 
be  a  source  of  different  opinions;  as  will  the  mode  of  disposing  of  the 
unsurveyed  residue.  The  eastern  gentlemen  remain  attached  to  the 
scheme  of  townships.  Many  others  are  equally  strenuous  for  indis- 
criminate locations.  The  States,  which  have  lands  of  their  own  for 
sale,  are  suspected  of  not  being  hearty  in  bringing  the  federal  land 
to  market.  The  business  with  Spain  is  becoming  extremely  delicate, 
and  the  information  from  the  Western  settlements  truly  alarming. 

A  motion  was  made  some  days  ago  for  an  adjournment  of  Congress 
for  a  short  period,  and  an  appointment  of  Philadelphia  for  their  reas- 
sembly. The  eccentricity  of  this  place,  as  well  with  regard  to  east  and 
west  as  to  north  and  south,  has  I  find  been  for  a  considerable  time  a 
thorn  in  the  minds  of  many  of  the  Southern  members.  Suspicion  too 
has  charged  some  important  votes  on  the  weight  thrown  by  the  pre- 
sent position  of  Congress  into  the  eastern  scale,  and  predicts  that  the 
eastern  members  will  never  concur  in  any  substantial  provision  or 
movement  for  a  proper  permanent  seat  for  the  national  government, 
while  they  remain  so  much  gratified  by  its  temporary  residence.  These 
seem  to  have  been  the  operating  motives  with  those  on  one  side,  who 
were  not  locally  interested  in  the  removal.  On  the  other  side,  the  motives 
are  obvious. 

Those  of  real  weight  were  drawn  from  the  apparent  caprice  with 
which  Congress  might  be  reproached,  and  particularly  from  the  peculi- 
arity of  the  existing  moment.  I  own,  that  I  think  so  much  regard  due 
to  these  considerations,  that,  notwithstanding  the  powerful  ones  on  the 
other  side,  I  should  have  assented  with  repugnance  to  the  motion,  and 
would  even  have  voted  against  it,  if  any  probability  had  existed,  that, 
by  waiting  for  a  proper  time,  a  proper  measure  might  not  be  lost  for  a 
very  long  time.  The  plan,  which  I  should  have  judged  most  eligible, 
would  have  been  to  fix  on  the  removal  whenever  a  vote  could  be  ob- 
tained, but  so  as  that  it  should  not  take  effect  until  the  commencement 
of  the  ensuing  federal  year;  and,  if  an  immediate  removal  had  been 
resolved  on,  I  had  intended  to  propose  such  a  change  in  the  plan. 

No  final  question  was  taken  in  the  case;  some  preliminary  questions 
showed  that  six  States  were  in  favor  of  the  motion.  Rhode  Island,  the 
seventh,  was  at  first  on  the  same  side;  and  Mr.  Varnum,  one  of  her  dele- 
gates, continues  so.  His  colleague  was  overcome  by  the  solicitations  of 
his  eastern  brethren.  As  neither  Maryland  nor  South  Carolina  was  on 
the  floor,  it  seems  pretty  evident  that  New  York  has  a  very  precarious 
tenure  of  the  advantages  derived  from  the  abode  of  Congress. 

We  understand,  that  the  discontents  in  Massachusetts,  which  lately 
produced  an  appeal  to  the  sword,  are  now  producing  a  trial  of  strength 
in  the  field  of  electioneering.  The  governor  will  be  displaced.  The 
Senate  is  said  to  be  already  of  a  popular  complexion,  and  it  is  expected 
the  other  branch  will  be  still  more  so.  Paper  money,  it  is  surmised,  will 


APPENDIX  561 

be  the  engine  to  be  played  off  against  creditors  both  public  and  private.      APPENDIX 
As  the  event  of  the  elections,  however,  is  not  yet  decided,  this  informa-          XII 
tion  must  be  too  much  blended  with  conjecture  to  be  regarded  as  a 
matter  of  certainty.  I  do  not  learn,  that  the  proposed  act  relating  to  Ver- 
mont has  yet  gone  through  all  the  stages  of  legislation  here;  nor  can  I 
say  whether  it  will  finally  pass  or  not.   In  truth,  it  having  not  been  a 
subject  of  conversation  for  some  time,  I  am  unable  to  say  what  has  been 
done,  or  is  likely  to  be  done  with  it.  With  the  sincerest  affection,  and  the 
highest  esteem,  I  have  the  honor  to  be,  dear  Sir,  your  devoted  servant. 

Mr.  Gaillard  Hunt,  in  his  charming  Life  of  James  Madison,  p.  1 19,  in  speak- 
ing of  the  "Virginia  Plan,"  says:  "It  contained  the  features  of  Madison's 
ideas  of  government,  as  outlined  in  his  letters  to  Randolph  and  Washington, 
but  it  was  Randolph's  hand  that  actually  drew  up  the  resolutions  known  in  the 
Convention  as  '  the  Virginia  Plan. ' "  In  support  of  that  assertion  he  refers  to 
Rowland's  Life  of  George  Mason,  ii,  101,  where  we  find  a  letter  written  by 
George  Mason  from  Philadelphia,  May  20,  1787,  to  George  Mason,  Jr.,  say- 
ing that  "  the  Virginia  deputies  (who  are  all  here)  meet  and  confer  together 
two  or  three  hours  every  day,  in  order  to  form  a  proper  correspondence  of 
sentiments;  and  for  form's  sake  to  see  what  new  deputies  are  arrived,  and  to 
grow  into  some  acquaintance  with  each  other,  we  regularly  meet  every  day 
at  three  o'clock."  Not  the  slightest  reference  is  made  in  the  letter  to  Ran- 
dolph or  to  any  part  taken  by  him  in  the  drafting  of  the  Virginia  plan.  After 
the  most  careful  examination  the  author  finds  nothing  to  give  even  color  to 
such  a  statement.  We  know  that  for  nearly  a  year  Madison  had  been  spe- 
cially engaged  upon  this  work.  (See  "Preparation  of  Madison  for  Labors  of 
Federal  Convention,"  in  Rives,  Life  and  Times  of  James  Madison,  ii,  208.) 
The  internal  evidence  is  all  in  his  favor,  the  style  is  evidently  his.  It  is  the 
deliberate  and  finished  product  of  a  careful  hand  that  has  spared  no  pains. 
There  is  no  evidence  whatever  of  any  such  preliminary  labor  upon  the  part 
of  Randolph.  There  is  positive  evidence  to  the  contrary  in  Madison's  letter 
to  Randolph  of  April  8,  1787,  in  which  he  says:  "  My  despair  of  your  finding 
the  necessary  leisure  as  signified  in  one  of  your  letters,  as  to  the  probability 
that  some  leading  propositions  at  least  would  be  expected  from  Virginia  had 
engaged  me  in  a  closer  attention  to  the  subject  than  I  should  otherwise  have 
given."  Randolph  almost  expressly  disclaimed  authorship  of  the  resolutions 
when,  in  the  opening  words  of  his  speech,  "He  expressed  his  regret,  that  it 
should  fall  to  him,  rather  than  those  who  were  of  longer  standing  in  life  and 
political  experience,  to  open  the  great  subject  of  their  mission.  But  as  the 
Convention  had  originated  from  Virginia,  and  his  colleagues  supposed  that 
some  proposition  was  expected  from  them,  they  had  imposed  this  task  on  him." 
There  is  no  intimation  that  the  task  of  drafting  the  resolutions  had  in  any 
way  been  imposed  on  him.  And  here  the  very  important  fact  should  be  noted 
that  Randolph's  speech  is  inserted  entirely  in  Randolph's  hand,  while  the 
Virginia  plan  is  spread  upon  the  journal  in  Madison1  s  hand.  There  can  be  no 
reasonable  doubt  that  Madison  was  the  draftsman  of  the  Virginia  plan.  It 
was  undoubtedly  his  production  both  as  to  form  and  substance.  He  was  in 
Philadelphia  on  February  16,  1783,  at  work  in  the  Continental  Congress, 
within  a  few  blocks  of  the  printing-house  from  which  issued  the  epoch- 
making  invention  put  forth  by  Pelatiah  Webster  on  that  day.  After  four 
years  of  study  and  reflection  he  restated,  with  his  practiced  hand,  the 
essence  of  the  great  discovery  in  the  Resolutions  offered  by  Randolph  in 
the  Federal  Convention  on  May  29,  1787. 


XIII 

THE  PINCKNEY  "PLAN  OF  A  FEDERAL  CONSTI- 
TUTION" PRESENTED  TO  THE  FEDERAL  CON- 
VENTION, MAY  29,  1787,  BY  CHARLES  PINCKNEY 

(Reprinted  from  the  copy  furnished  by  him  in  1818  to  John  Quincy 
Adams,  Secretary  of  State.  The  history  of  that  transaction  has  been  given 
heretofore  at  page  33  sq.  The  following  is  a  reprint  from  The  Madison 
Papers,  ii,  735~746.) 

APPENDIX         MR.  CHARLES  PINCKNEY  laid  before  the  House  the  draft  of  a  federal 
XIII          government  which  he  had  prepared,  to  be  agreed  upon  between  the  free 
and  independent  States  of  America: 

PLAN  OF  A  FEDERAL  CONSTITUTION 

We,  the  people  of  the  States  of  New  Hampshire,  Massachusetts, 
Rhode  Island  and  Providence  Plantations,  Connecticut,  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  and  Georgia,  do  ordain,  declare,  and  estab- 
lish the  following  Constitution  for  the  government  of  ourselves  and 
posterity. 

ARTICLE  I 

The  style  of  this  government  shall  be :  The  United  States  of  America, 
and  the  government  shall  consist  of  supreme  legislative,  executive  and 
judicial  powers. 

ARTICLE  II 

The  legislative  power  shall  be  vested  in  a  Congress,  to  consist  of  two 
separate  Houses;  one  to  be  called  the  House  of  Delegates;  and  the  other 
the  Senate,  who  shall  meet  on  the day  of in  every  year. 

ARTICLE  III 

The  members  of  the  House  of  Delegates  shall  be  chosen  every 

year  by  the  people  of  the  several  States;  and  the  qualification  of  the 
electors  shall  be  the  same  as  those  of  the  electors  in  the  several  States 
for  their  Legislatures.  Each  member  shall  have  been  a  citizen  of  the 

United  States  for years ;  and  shall  be  of years  of  age,  and 

a  resident  in  the  State  he  is  chosen  for.  Until  a  census  of  the  people  shall 
be  taken  in  the  manner  hereinafter  mentioned,  the  House  of  Delegates 
shall  consist  of ,  to  be  chosen  from  the  different  States  in  the 


APPENDIX  563 

following  proportions:  for  New  Hampshire, ;  for  Massachusetts,     APPENDIX 

;  for  Rhode  Island, ;  for  Connecticut, ;  for  New         XIII 

York, ;  for  New  Jersey, ;  for  Pennsylvania, ;  for 

Delaware, ;  for  Maryland, ;  for  Virginia, ;  for  North 

Carolina, ;  for  South  Carolina, ;  for  Georgia, ;  and 

the  Legislature  shall  hereinafter  regulate  the  number  of  Delegates  by 
the  number  of  inhabitants,  according  to  the  provisions  hereinafter  made, 

at  the  rate  of  one  for  every thousand.  All  money  bills  of  every 

kind  shall  originate  in  the  House  of  Delegates,  and  shall  not  be  altered 
by  the  Senate.  The  House  of  Delegates  shall  exclusively  possess  the 
power  of  impeachment,  and  shall  choose  its  own  officers;  and  vacancies 
therein  shall  be  supplied  by  the  executive  authority  of  the  States  in 
the  representation  from  which  they  shall  happen. 

ARTICLE  IV 

The  Senate  shall  be  elected  and  chosen  by  the  House  of  Delegates; 
which  House,  immediately  after  their  meeting,  shall  choose  by  ballot 
Senators  from  among  the  citizens  and  residents  of  New  Hamp- 
shire;   from  among  those  of  Massachusetts; from  among 

those  of  Rhode  Island ; from  among  those  of  Connecticut; 

from  among  those  of  New  York; from  among  those  of  New  Jer- 
sey;   from  among  those  of  Pennsylvania; from  among 

those  of  Delaware ; from  among  those  of  Maryland ; from 

among  those  of  Virginia; from  among  those  of  North  Carolina; 

from  among  those  of  South  Carolina;  and from  among 

those  of  Georgia.  The  Senators  chosen  from  New  Hampshire,  Massa- 
chusetts, Rhode  Island,  and  Connecticut,  shall  form  one  class;  those 
from  New  York,  New  Jersey,  Pennsylvania  and  Delaware,  one  class; 
and  those  from  Maryland,  Virginia,  North  Carolina,  South  Carolina 
and  Georgia,  one  class.  The  House  of  Delegates  shall  number  these 
classes  one,  two,  and  three;  and  fix  the  times  of  their  service  by  lot.  The 

first  class  shall  serve  for years;  the  second  for years;  and 

the  third  for years.  As  their  times  of  service  expire,  the  House  of 

Delegates  shall  fill  them  up  by  elections  for years;  and  they  shall 

fill  all  vacancies  that  arise  from  death  or  resignation,  for  the  time  of  ser- 
vice remaining  of  the  members  so  dying  or  resigning.  Each  Senator 

shall  be years  of  age  at  least ;  and  shall  have  been  a  citizen  of  the 

United  States  for  four  years  before  his  election;  and  shall  be  a  resident 
of  the  State  he  is  chosen  from.  The  Senate  shall  choose  its  own  officers. 

ARTICLE  V 

Each  State  shall  prescribe  the  time  and  manner  of  holding  elections 
by  the  people  for  the  House  of  Delegates;  and  the  House  of  Delegates 
shall  be  the  judges  of  the  elections,  returns,  and  qualifications  of  their 
members. 

In  each  House  a  majority  shall  constitute  a  quorum  to  do  business. 
Freedom  of  speech  and  debate  in  the  Legislature  shall  not  be  im- 


564  APPENDIX 

APPENDIX     peached,  or  questioned,  in  any  place  out  of  it;  and  the  members  of  both 

XIII          Houses  shall  in  all  cases,  except  for  treason,  felony,  or  breach  of  the 

peace,  be  free  from  arrest  during  their  attendance  on  Congress,  and  in 

going  to  and  returning  from  it.  Both  Houses  shall  keep  Journals  of  their 

proceedings,  and  publish  them,  except  on  secret  occasions;  and  the  Yeas 

and  Nays  may  be  entered  thereon  at  the  desire  of  one of  the 

members  present.   Neither  House,  without  the  consent  of  the  other, 

shall  adjourn  for  more  than days,  nor  to  any  place  but  where 

they  are  sitting. 

The  members  of  each  House  shall  not  be  eligible  to,  or  capable  of 
holding,  any  office  under  the  Union,  during  the  time  for  which  they  have 
been  respectively  elected ;  nor  the  members  of  the  Senate  for  one  year 
after.  The  members  of  each  House  shall  be  paid  for  their  services  by 
the  States  which  they  represent.  Every  bill  which  shall  have  passed  the 
Legislature  shall  be  presented  to  the  President  of  the  United  States  for 
his  revision ;  if  he  approves  it,  he  shall  sign  it ;  but  if  he  does  not  approve 
it,  he  shall  return  it,  with  his  objections,  to  the  House  it  originated  in; 
which  House,  if  two  thirds  of  the  members  present,  notwithstanding 
the  President's  objections,  agree  to  pass  it,  shall  send  it  to  the  other 
House,  with  the  President's  objections;  where  if  two  thirds  of  the  mem- 
bers present  also  agree  to  pass  it,  the  same  shall  become  a  law;  and  all 

bills  sent  to  the  President,  and  not  returned  by  him  within days, 

shall  be  laws,  unless  the  Legislature,  by  their  adjournment  prevent  their 
return ;  in  which  case  they  shall  not  be  laws. 

ARTICLE  VI 

The  Legislature  of  the  United  States  shall  have  the  power  to  lay  and 
collect  taxes,  duties,  imposts,  and  excises; 

To  regulate  commerce  with  all  nations,  and  among  the  several  States; 

To  borrow  money  and  emit  bills  of  credit; 

To  establish  post-offices; 

To  raise  armies; 

To  build  and  equip  fleets; 

To  pass  laws  for  arming,  organizing,  and  disciplining  the  militia  of  the 
United  States; 

To  subdue  a  rebellion  in  any  State,  on  application  of  its  Legislature; 

To  coin  money,  and  regulate  the  value  of  all  coins,  and  to  fix  the 
standard  of  weights  and  measures; 

To  provide  such  dockyards  and  arsenals,  and  erect  such  fortifications 
as  may  be  necessary  for  the  United  States,  and  to  exercise  exclusive 
jurisdiction  therein; 

To  appoint  a  Treasurer,  by  ballot ; 

To  constitute  tribunals  inferior  to  the  Supreme  Court; 

To  establish  post  and  military  roads; 

To  establish  and  provide  for  a  national  university  at  the  seat  of  gov- 
ernment of  the  United  States; 

To  establish  uniform  rules  of  naturalization; 

To  provide  for  the  establishment  of  a  seat  of  government  for  the 


APPENDIX  565 

United  States,  not  exceeding miles  square,  in  which  they  shall     APPENDIX 

have  exclusive  jurisdiction;  XIII 

To  make  rules  concerning  captures  from  an  enemy; 

To  declare  the  law  and  punishment  of  piracies  and  felonies  at  sea,  and 
of  counterfeiting  coin,  and  of  all  offences  against  the  laws  of  nations ; 

To  call  forth  the  aid  of  the  militia  to  execute  the  laws  of  the  Union, 
enforce  treaties,  suppress  insurrections,  and  repel  invasions ; 

And  to  make  all  laws  for  carrying  the  foregoing  powers  into  execution. 

The  Legislature  of  the  United  States  shall  have  the  power  to  declare 
the  punishment  of  treason,  which  shall  consist  only  in  levying  war  against 
the  United  States,  or  any  of  them,  or  in  adhering  to  their  enemies.  No 
person  shall  be  convicted  of  treason  but  by  the  testimony  of  two  wit- 
nesses. 

The  proportion  of  direct  taxation  shall  be  regulated  by  the  whole 
number  of  inhabitants  of  every  description;  which  number  shall,  within 

years  after  the  first  meeting  of  the  Legislature,  and  within  the 

term  of  every year  after,  be  taken  in  the  manner  to  be  prescribed 

by  the  Legislature. 

No  tax  shall  be  laid  on  articles  exported  from  the  States;  nor  capita- 
tion tax  but  in  proportion  to  the  census  before  directed. 

All  laws  regulating  commerce  shall  require  the  assent  of  two  thirds 
of  the  members  present  in  each  House.  The  United  States  shall  not 
grant  any  title  of  nobility.  The  Legislature  of  the  United  States  shall 
pass  no  law  on  the  subject  of  religion;  nor  touching  or  abridging  the 
liberty  of  the  press;  nor  shall  the  privilege  of  the  writ  of  Habeas  Corpus 
ever  be  suspended,  except  in  case  of  rebellion  or  invasion. 

All  acts  made  by  the  Legislature  of  the  United  States,  pursuant  to 
this  Constitution,  and  all  treaties  made  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land;  and  all  judges 
shall  be  bound  to  consider  them  as  such  in  their  decisions. 

ARTICLE   VII 

The  Senate  shall  have  the  sole  and  exclusive  power  to  declare  war; 
and  to  make  treaties ;  and  to  appoint  ambassadors  and  other  Ministers 
to  foreign  nations;  and  judges  of  the  Supreme  Court. 

They  shall  have  the  exclusive  power  to  regulate  the  manner  of 
deciding  all  disputes  and  controversies  now  existing,  or  which  may  arise, 
between  the  States,  respecting  jurisdiction  or  territory. 

ARTICLE  VIII 

The  executive  power  of  the  United  States  shall  be  vested  in  a  Pre- 
sident of  the  United  States  of  America,  which  shall  be  his  style;  and  his 

title  shall  be  His  Excellency.  He  shall  be  elected  for years;  and 

shall  be  re-eligible.  He  shall  from  time  to  time  give  information  to  the 
Legislature,  of  the  state  of  the  Union,  and  recommend  to  their  considera- 
tion the  measures  he  may  think  necessary.  He  shall  take  care  that  the 
laws  of  the  United  States  be  duly  executed.  He  shall  commission  all  the 


566  APPENDIX 

APPENDIX  officers  of  the  United  States;  and,  except  as  to  ambassadors,  other  min- 
XIII  isters,  and  judges  of  the  Supreme  Court,  he  shall  nominate,  and,  with 
the  consent  of  the  Senate,  appoint,  all  other  officers  of  the  United  States. 
He  shall  receive  public  ministers  from  foreign  nations;  and  may  corre- 
spond with  the  Executives  of  the  different  States.  He  shall  have  power 
to  grant  pardons  and  reprieves,  except  in  impeachments.  He  shall  be 
Commander-in-Chief  of  the  army  and  navy  of  the  United  States,  and 
of  the  militia  of  the  several  States;  and  shall  receive  a  compensation 
which  shall  not  be  increased  or  diminished  during  his  continuance  in 
office.  At  entering  on  the  duties  of  his  office,  he  shall  take  an  oath  faith- 
fully to  execute  the  duties  of  a  President  of  the  United  States.  He  shall 
be  removed  from  his  office  on  impeachment  by  the  House  of  Delegates, 
and  conviction  in  the  Supreme  Court  of  treason,  bribery  or  corruption. 
In  case  of  his  removal,  death,  resignation  or  disability,  the  President  of 
the  Senate  shall  exercise  the  duties  of  his  office  until  another  President 
be  chosen.  And  in  case  of  the  death  of  the  President  of  the  Senate,  the 
Speaker  of  the  House  of  Delegates  shall  do  so. 

ARTICLE  IX 

The  Legislature  of  the  United  States  shall  have  the  power,  and  it  shall 
be  their  duty,  to  establish  such  courts  of  law,  equity,  and  admiralty, 
as  shall  be  necessary. 

The  judges  of  the  courts  shall  hold  their  offices  during  good  behaviour; 
and  receive  a  compensation,  which  shall  not  be  increased  or  diminished 
during  their  continuance  in  office.  One  of  these  courts  shall  be  termed 
the  Supreme  Court;  whose  jurisdiction  shall  extend  to  all  cases  arising 
under  the  laws  of  the  United  States,  or  affecting  ambassadors,  other 
public  ministers  and  consuls;  to  the  trial  of  impeachment  of  officers  of 
the  United  States;  to  all  cases  of  admiralty  and  maritime  jurisdiction. 
In  cases  of  impeachment  affecting  ambassadors  and  other  public  min- 
isters, this  jurisdiction  shall  be  original;  and  in  all  other  cases  appellate. 

All  criminal  offences,  except  in  cases  of  impeachment,  shall  be  tried  in 
the  State  where  they  shall  be  committed.  The  trials  shall  be  open  and 
public,  and  shall  be  by  jury. 

ARTICLE  X 

Immediately  after  the  first  census  of  the  people  of  the  United  States, 
the  House  of  Delegates  shall  apportion  the  Senate  by  electing  for  each 

State,  out  of  the  citizens  resident  therein,  one  Senator  for  every 

members  each  State  shall  have  in  the  House  of  Delegates.  Each  State 
-    shall  be  entitled  to  have  at  least  one  member  in  the  Senate. 

ARTICLE  XI 

No  State  shall  grant  letters  of  marque  and  reprisal,  or  enter  into  a 
treaty,  or  alliance,  or  confederation;  nor  grant  any  title  of  nobility; 
nor  without  the  consent  of  the  Legislature  of  the  United  States,  lay  any 
impost  on  imports;  nor  keep  troops  or  ships  of  war  in  time  of  peace;  nor 


APPENDIX  567 

enter  into  compacts  with  other  States  or  foreign  powers;  nor  emit  bills     APPENDIX 
of  credit;  nor  make  anything  but  gold,  silver,  or  copper,  a  tender  in         XIII 
payment  of  debts;  nor  engage  in  war  except  for  self-defence  when  actu- 
ally invaded,  or  the  danger  of  invasion  be  so  great  as  not  to  admit  of 
a  delay  until  the  Government  of  the  United  States  can  be  informed 
thereof.  And  to  render  these  prohibitions  effectual,  [the  Legislature 
of  the  United  States  shall  have  the  power  to  revise  the  laws  of  the 
several  States  that  may  be  supposed  to  infringe  the  powers  exclusively 
delegated  by  this  Constitution  to  Congress,  and  to  negative  and  annul 
such  as  do. 

ARTICLE  XII 

The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and  im- 
munities of  citizens  in  the  several  States.  Any  person,  charged  with 
crimes  in  any  State,  fleeing  from  justice  to  another,  shall,  on  demand 
of  the  Executive  of  the  State  from  which  he  fled,  be  delivered  up,  and 
removed  to  the  State  having  jurisdiction  of  the  offence. 

ARTICLE  XIII 

Full  faith  shall  be  given,  in  each  State,  to  the  acts  of  the  Legislature, 
and  to  the  records  and  judicial  proceedings  of  the  courts  and  magistrates, 
of  every  State. 

ARTICLE  XIV 

The  Legislature  shall  have  power  to  admit  new  States  into  the  Union, 
on  the  same  terms  with  the  original  States;  provided  two  thirds  of  the 
members  present  in  both  Houses  agree. 

ARTICLE  XV 

On  the  application  of  the  Legislature  of  a  State,  the  United  States 
shall  protect  it  against  domestic  insurrection. 

ARTICLE  XVI 

If  two  thirds  of  the  Legislatures  of  the  States  apply  for  the  same,  the 
Legislature  of  the  United  States  shall  call  a  convention  for  the  purpose 
of  amending  the  Constitution  or,  should  Congress,  with  the  consent  of 
two  thirds  of  each  House,  propose  to  the  States  amendments  to  the 
same,  agreement  of  two  thirds  of  the  Legislatures  of  the  States  shall  be 
sufficient  to  make  the  said  amendments  parts  of  the  Constitution. 

The  ratification  of  the conventions  of States  shall  be 

sufficient  for  organizing  this  Constitution. 

Ordered  that  the  said  draft  be  referred  to  the  Committee  of  the  Whole 
appointed  to  consider  the  state  of  the  American  Union. 

Adjourned. 


XIV 


THE  ALEXANDER  HAMILTON  PLAN 

CONSISTING  OF  THE  ELEVEN  PROPOSITIONS  ACTUALLY  PRE- 
SENTED BY  HIM  TO  THE  FEDERAL  CONVENTION  ON  JUNE  1 8, 
WHICH  WERE  FOLLOWED  BY  HIS  GREAT  SPEECH  OF  FIVE 
HOURS,  AND  THE  MORE  ELABORATE  PLAN  OF  A  "CONSTITU- 
TION OF  GOVERNMENT  BY  THE  PEOPLE  OF  THE  UNITED  STATES 
OF  AMERICA,"  NOT  FORMALLY  INTRODUCED  IN  THE  CONVEN- 
TION, BUT  HANDED  TOWARDS  ITS  CLOSE  TO  MADISON,  WHO 
RETAINED  A  COPY  OF  IT 

[The  following  is  the  text  of  the  two  documents,  as  printed  in  The  Works 
of  Alexander  Hamilton  (Lodge  ed.),  vol.  i,  pp.  347-369.] 

PROPOSITIONS  FOR  A  CONSTITUTION    OF  GOVERNMENT 

APPENDIX         I.  THE  supreme  legislative  power  of  the  United  States  of  America 
XIV          is  to  be  vested  in  two  distinct  bodies  of  men ;  the  one  to  be  called  the 
Assembly,  the  other  the  Senate;  who  together  shall  form  the  Legisla- 
ture of  the  United  States,  with  power  to  pass  all  laws  whatsoever,  sub- 
ject to  the  negative  hereafter  mentioned. 

II.  The  Assembly  to  consist  of  persons  elected  by  the  people,  to 
serve  for  three  years. 

III.  The  Senate  to  consist  of  persons  elected  to  serve  during  good 
behaviour.     Their  election  to  be  made  by  electors  chosen  for  that 
purpose  by  the  people.    In  order  to  this,  the  States  to  be  divided  into 
election  districts.    On  the  death,  removal,  or  resignation  of  any  Sena- 
tor, his  place  to  be  filled  out  of  the  district  from  which  he  came. 

IV.  The  supreme  executive  authority  of  the  United  States  to  be 
vested  in  a  Governor,  to  be  elected  to  serve  during  good  behaviour. 
His  election  to  be  made  by  electors  chosen  by  the  people,  in  the  election 
districts  aforesaid;  or  by  electors  chosen  for  that  purpose  by  the  re- 
spective Legislatures  —  provided  that  if  an  election  be  not   made 
within  a  limited  time,  the  President  of  the  Senate  shall  be  the  Governor. 
The  Governor  to  have  a  negative  upon  all  laws  about  to  be  passed  — 
and  (to  have)  the  execution  of  all  laws  passed  —  to  be  the  Commander- 
in -Chief  of  the  land  and  naval  forces  and  of  the  militia  of  the  United 
States  —  to  have  the  entire  direction  of  war  when  authorized  or  be- 
gun —  to  have,  with  the  advice  and  approbation  of  the  Senate,  the 
power  of  making  all  treaties  —  to  have  the  appointment  of  the  heads 


APPENDIX  569 

or  chief  officers  of  the  departments  of  finance,  war,  and  foreign  affairs  —     APPENDIX 
to  have  the  nomination  of  all  other  officers  (ambassadors  to  foreign         XIV 
nations  included)  subject  to  the  approbation  or  rejection  of  the  Sen- 
ate —  to  have  the  power  of  pardoning  all  offences  but  treason,  which 
he  shall  not  pardon  without  the  approbation  of  the  Senate. 

V.  On  the  death,  resignation,  or  removal  of  the  Governor,  his  au- 
thorities to  be  exercised  by  the  President  of  the  Senate  (until  a  suc- 
cessor be  appointed). 

VI.  The  Senate  to  have  the  sole  power  of  declaring  war  —  the  power 
of  advising  and  approving  all  treaties  —  the  power  of  approving  or 
rejecting  all  appointments  of  officers,  except  the  heads  or  chiefs  of  the 
departments  of  finance,  war,  and  foreign  affairs. 

VII.  The  Supreme  judicial  authority  of  the  United  States  to  be  vested 
in  twelve  judges,  to  hold  their  offices  during  good  behaviour,  with  ade- 
quate and  permanent  salaries.   This  court  to  have  original  jurisdiction 
in  all  causes  of  capture,  and  an  appellate  jurisdiction  (from  the  courts 
of  the  several  States)  in  all  causes  in  which  the  revenues  of  the  General 
Government  or  the  citizens  of  foreign  nations  are  concerned. 

VIII.  The  Legislature  of  the  United  States  to  have  power  to  in- 
stitute courts  in  each  State  for  the  determination  of  all  causes  of  cap- 
ture, and  of  all  matters  relating  to  their  revenues,  or  in  which  the 
citizens  of  foreign  nations  are  concerned. 

IX.  The  Governor,  Senators,  and  all  officers  of  the  United  States 
to  be  liable  to  impeachments  for  mal  and  corrupt  conduct,  and  upon 
conviction  to  be  removed  from  office,  and  disqualified  for  holding  any 
place  of  trust  or  profit. 

All  impeachments  to  be  tried  by  a  court,  to  consist  of  the  judges  of 
the  Supreme  Court,  chief  or  senior  judge  of  the  Superior  Court  of  law 
of  each  State  —  provided  that  such  judge  hold  his  place  during  good 
behaviour  and  have  a  permanent  salary. 

X.  All  laws  of  the  particular  States  contrary  to  the  Constitution 
or  laws  of  the  United  States  to  be  utterly  void.  And  the  better  to  pre- 
vent such  laws  being  passed,  the  Governor  or  President  of  each  State 
shall  be  appointed  by  the  General  Government  and  shall  have  a  nega- 
tive upon  the  laws  about  to  be  passed  in  the  State  of  which  he  is  Gov- 
ernor or  President. 

XI.  No  State  to  have  any  forces,  land  or  naval  —  and  the  militia 
of  all  the  States  to  be  under  the  sole  and  exclusive  direction  of  the 
United  States,  the  officers  of  which  to  be  appointed  and  commissioned 
by  them. 


570  APPENDIX 

APPENDIX      CONSTITUTION  OF  GOVERNMENT  BY  THE  PEOPLE  OF  THE  UNITED 
XIV  STATES   OF  AMERICA 

First  Draft  of  Hamilton,  1787 

The  people  of  the  United  States  of  America  do  ordain  and  establish 
this  Constitution  for  the  government  of  themselves  and  their  posterity. 

ARTICLE  I 

SEC.  I.  The  legislative  power  shall  be  vested  in  two  distinct  bodies 
of  men,  one  to  be  called  the  Assembly,  and  the  other  the  Senate,  sub- 
ject to  the  negative  hereinafter  mentioned. 

SEC.  2.  The  executive  power,  with  the  qualifications  hereinafter 
specified,  shall  be  vested  in  a  President  of  the  United  States. 

SEC.  3.  The  supreme  judicial  authority,  except  in  the  cases  other- 
wise provided  for  in  this  Constitution,  shall  be  vested  in  a  court,  to  be 
called  the  Supreme  Court,  to  consist  of  not  less  than  six  nor  more  than 
twelve  judges. 

ARTICLE  II 

SEC.  i.  The  Assembly  shall  consist  of  persons  to  be  called  Repre- 
sentatives, who  shall  be  chosen,  except  in  the  first  instance,  by  the  free 
male  citizens  and  inhabitants  of  the  several  States  comprehended  in 
the  Union,  all  of  whom,  of  the  age  of  twenty-one  years  and  upwards, 
shall  be  entitled  to  equal  vote. 

SEC.  2.  But  the  first  Assembly  shall  be  chosen  in  the  manner  pre- 
scribed in  the  last  Article,  and  shall  consist  of  a  hundred  members,  of 
whom  New  Hampshire  shall  have  five,  Massachusetts  thirteen,  Rhode 
Island  two,  Connecticut  seven,  New  York  nine,  New  Jersey  six,  Penn- 
sylvania twelve,  Delaware  two,  Maryland  eight,  Virginia  sixteen, 
North  Carolina  eight,  South  Carolina  eight,  Georgia  four. 

SEC.  3.  The  Legislature  shall  provide  for  the  future  election  of 
Representatives,  apportioning  them  in  each  State,  from  time  to  time, 
as  nearly  as  may  be  to  the  number  of  persons  described  in  the  4th 
Section  of  the  yth  Article,  so  as  that  the  whole  number  of  Represent- 
atives shall  never  be  less  than  one  hundred  nor  more  than 

hundred.  There  shall  be  a  census  taken  for  this  purpose  within  three 
years  after  the  first  meeting  of  the  Legislature  and  within  every  suc- 
cessive period  of  ten  years.  The  term  for  which  representatives  shall 
be  elected  shall  be  determined  by  the  Legislature,  but  shall  not  ex- 
ceed three  years.  There  shall  be  a  general  election  at  least  once  in 
three  years,  and  the  time  of  service  of  all  the  members  in  each  As- 
sembly shall  begin  (except  in  filling  vacancies)  on  the  same  day,  and 
shall  end  on  the  same  day. 

SEC.  4.  Forty  members  shall  make  a  House  sufficient  to  proceed  to 
business;  but  this  number  may  be  increased  by  the  Legislature,  yet  so 
as  never  to  exceed  a  majority  of  the  whole  number  of  Representatives. 


APPENDIX  571 

SEC.  5.  The  Assembly  shall  choose  its  President  and  other  officers,     APPENDIX 
shall  judge  of   the  qualifications  and  election  of  its  own  members,          XIV 
shall  punish  them  for  improper  conduct  in  their  capacity  of  Represent- 
atives, not  extending  to  life  or  limb,  and  shall  exclusively  possess  the 
power  of  impeachment,  except  in  the  case  of  the  President  of  the  United 
States;  but  no  impeachment  of  a  member  of  the  Senate  shall  be  by  less 
than  two  thirds  of  the  Representatives  present. 

SEC.  6.  Representatives  may  vote  by  proxy,  but  no  Representative 
present  shall  be  proxy  for  more  than  one  who  is  absent. 

SEC.  7.  Bills  for  raising  revenue,  and  bills  for  appropriating  monies, 
for  the  support  of  fleets  and  armies,  and  for  paying  the  salaries  of  the 
officers  of  the  Government,  shall  originate  in  the  Assembly,  but  may  be 
altered  and  amended  by  the  Senate. 

SEC.  8.  The  acceptance  of  an  office  under  the  United  States  by  a 
Representative,  shall  vacate  his  seat  in  the  Assembly. 

ARTICLE   III 

SEC.  I.  The  Senate  shall  consist  of  persons  to  be  chosen,  except  in 
the  first  instance,  by  electors  elected  for  that  purpose  by  the  citizens 
and  inhabitants  of  the  several  States  comprehended  in  the  Union,  who 
shall  have  in  their  own  right,  or  in  the  right  of  their  wives,  an  estate  in 
land  for  not  less  than  life,  or  a  term  of  years,  whereof  at  the  time  of 
giving  their  votes  there  shall  be  at  least  fourteen  years  unexpired. 

SEC.  2.  But  the  full  Senate  shall  be  chosen  in  the  manner  prescribed 
in  the  last  Article,  and  shall  consist  of  forty  members,  to  be  called 

Senators,  of  whom  New  Hampshire  shall  have ,  Massachusetts 

,  Rhode  Island ,  Connecticut ,  New  York , 

New  Jersey ,  Pennsylvania ,  Delaware  ,  Mary- 
land   ,  Virginia ,  North  Carolina ,  South  Carolina 

,  Georgia . 

SEC.  3.  The  Legislature  shall  provide  for  the  future  elections  of 
Senators;  for  which  purpose  the  States  respectively,  which  have  more 
than  one  Senator,  shall  be  divided  into  convenient  districts  to  which 
the  Senators  shall  be  apportioned.  A  State  having  but  one  Senator 
shall  be  itself  a  district.  On  the  death,  resignation,  or  removal  from 
office  of  a  Senator,  his  place  shall  be  supplied  by  a  new  election  in  the 
district  from  which  he  came.  Upon  each  election  there  shall  be  not 
less  than  six  nor  more  than  twelve  electors  chosen  in  a  district. 

SEC.  4.  The  number  of  Senators  shall  never  be  less  than  forty,  nor 
shall  any  State,  if  the  same  shall  not  hereafter  be  divided,  ever  have 
less  than  the  number  allotted  to  it  in  the  second  Section  of  this  Article; 
but  the  Legislature  may  increase  the  whole  number  of  Senators,  in  the 
same  proportion  to  the  whole  number  of  Representatives  as  forty  is 
to  one  hundred,  and  such  increase,  beyond  the  present  number,  shall 
be  apportioned  to  the  respective  States  in  a  ratio  to  the  respective 
numbers  of  their  Representatives. 

SEC.  5.  If  States  shall  be  divided,  or  if  a  new  arrangement  of  the 
boundaries  of  two  or  more  States  shall  take  place,  the  Legislature  shall 


572  APPENDIX 

APPENDIX  apportion  the  number  of  Senators  (in  elections  succeeding  such  division 
XIV  or  arrangement)  to  which  the  constituent  parts  were  entitled  accord- 
ing to  the  change  of  situation,  having  regard  to  the  number  of  persons 
described  in  the  4th  Section  of  the  7th  Article. 

SEC.  6.  The  Senators  shall  hold  their  places  during  good  behaviour, 
removable  only  by  conviction,  on  impeachment  for  some  crime  or  mis- 
demeanor. They  shall  continue  to  exercise  their  offices  when  impeached 
until  a  conviction  shall  take  place.  Sixteen  Senators,  attending  in 
person,  shall  be  sufficient  to  make  a  house  to  transact  business;  but  the 
Legislature  may  increase  this  number,  yet  so  as  never  to  exceed  a  ma- 
jority of  the  whole  number  of  Senators.  The  Senators  may  vote  by 
proxy,  but  no  Senator  who  is  present  shall  be  proxy  for  more  than  two 
who  are  absent. 

SEC.  7.  The  Senate  shall  choose  its  President  and  other  officers, 
shall  judge  of  the  qualifications  and  elections  of  its  members,  and  shall 
punish  them  for  improper  conduct  in  their  capacity  of  Senators;  but 
such  punishment  shall  not  extend  to  life  or  limb,  nor  to  expulsion.  In 
the  absence  of  their  President  they  may  choose  a  temporary  President. 
The  President  shall  only  have  a  casting  vote  when  the  House  is  equally 
divided. 

SEC.  8.  The  Senate  shall  exclusively  have  the  power  of  declaring 
war.  No  treaty  shall  be  made  without  their  advice  and  consent; 
which  shall  also  be  necessary  to  the  appointment  of  all  officers,  except 
such  for  which  a  different  provision  is  made  in  this  Constitution. 

ARTICLE     IV 

SEC.  i.  The  President  of  the  United  States  of  America  (except  in  the 
first  instance)  shall  be  elected  in  the  manner  following: 

The  judges  of  the  Supreme  Court  shall,  within  sixty  days  after  a  va- 
cancy shall  happen,  cause  public  notice  to  be  given  in  each  State  of  such 
vacancy,  appointing  therein  three  several  days  for  the  several  pur- 
poses following,  to  wit:  a  day  for  commencing  the  election  of  electors 
for  the  purposes  thereinafter  specified,  to  be  called  the  first  electors, 
which  day  shall  be  not  less  than  forty  nor  more  than  sixty  days  after 
the  day  of  the  publication  of  the  notice  in  each  State;  another  day  for 
the  meeting  of  the  electors,  not  less  than  forty  nor  more  than  ninety 
days  from  the  day  commencing  their  election ;  another  day  for  the  meet- 
ing of  the  electors,  to  be  chosen  by  the  first  electors,  for  the  purpose 
hereinafter  specified,  and  to  be  called  the  second  electors,  which  day 
shall  be  not  less  than  forty  nor  more  than  sixty  days  after  the  day  for 
the  meeting  of  the  first  electors. 

SEC.  2.  After  notice  of  a  vacancy  shall  have  been  given,  there  shall 
be  chosen  in  each  State  a  number  of  persons,  as  the  first  electors  in  the 
preceding  Section  mentioned,  equal  to  the  whole  number  of  the  Re- 
presentatives and  Senators  of  such  State  in  the  Legislature  of  the  United 
States;  which  electors  shall  be  chosen  by  the  citizens  of  such  State 
having  an  estate  of  inheritance  or  for  three  lives  in  land,  or  a  clear 
personal  estate  of  the  value  of  one  thousand  Spanish  milled  dollars 
of  the  present  standard. 


APPENDIX  573 

SEC.  3.  These  first  electors  shall  meet  in  their  respective  States  at  APPENDIX 
the  time  appointed,  at  one  place,  and  shall  proceed  to  vote  by  ballot  XIV 
for  a  President  who  shall  not  be  one  of  their  own  number,  unless  the 
Legislature  upon  experiment  should  hereafter  direct  otherwise.  They 
shall  cause  two  lists  to  be  made  of  the  name  or  names  of  the  person 
or  persons  voted  for,  which  they,  or  the  major  part  of  them  shall  sign 
and  certify.  They  shall  then  proceed  each  to  nominate  individually, 
openly,  in  the  presence  of  the  others,  two  persons,  as  for  second  elect- 
ors; and  out  of  the  persons  who  shall  have  the  four  highest  numbers  of 
nominations,  they  shall  afterwards,  by  ballot,  by  plurality  of  votes, 
choose  two  who  shall  be  the  second  electors,  to  each  of  whom  shall 
be  delivered  one  of  the  lists  before  mentioned.  These  second  electors 
shall  not  be  any  of  the  persons  voted  for  as  President.  A  copy  of  the 
same  list,  signed  &  certified  in  like  manner,  shall  be  transmitted  by  the 
first  electors,  to  the  seat  of  the  government  of  the  United  States,  under 
a  sealed  cover,  directed  to  the  President  of  the  Assembly,  which,  after 
the  meeting  of  the  second  electors,  shall  be  opened  for  the  inspection 
of  the  two  Houses  of  the  Legislature. 

SEC.  4.  These  second  electors,  shall  meet  precisely  on  the  day  ap- 
pointed, and  not  on  another  day,  at  one  place.  The  chief-justice  of  the 
Supreme  Court,  or  if  there  be  no  chief -justice,  the  judge  junior  in  office, 
in  such  court,  or  if  there  be  no  one  judge  junior  in  office,  some  other 
judge  of  that  court,  by  the  choice  of  the  rest  of  the  judges,  or  of  a  ma- 
jority of  them,  shall  attend  at  the  same  place,  and  shall  preside  at  the 
meeting,  but  shall  have  no  vote.  Two  thirds  of  the  whole  number  of 
the  electors  shall  constitute  a  sufficient  meeting  for  the  execution  of 
their  trust.  At  this  meeting,  the  list  delivered  to  the  respective  electors 
shall  be  produced  and  inspected,  and  if  there  be  any  person  who  has  a 
majority  of  the  whole  number  of  the  votes  given  by  the  first  electors, 
he  shall  be  the  President  of  the  United  States.  But  if  there  be  no  such 
person,  the  second  electors  so  met  shall  proceed  to  vote  by  ballot  for 
one  of  the  persons,  named  in  the  list,  who  shall  have  the  three  highest 
numbers  of  the  votes  of  the  first  electors;  and  if  upon  the  first  or  any 
succeeding  ballot,  on  the  day  of  the  meeting,  either  of  those  persons 
shall  have  a  number  of  votes  equal  to  a  majority  of  the  whole  number 
of  second  electors  chosen,  he  shall  be  the  President ;  but  if  no  such  choice 
be  made  on  the  day  appointed  for  the  meeting,  either  by  reason  of  the 
non-attendance  of  the  second  electors,  or  their  not  agreeing,  or  any 
other  matter,  the  person  having  the  greatest  number  of  votes  of  the 
first  electors  shall  be  the  President. 

SEC.  5.  If  it  should  happen  that  the  chief -justice  or  some  other  judge 
of  the  Supreme  Court  should  not  attend  in  due  time,  the  second  elect- 
ors shall  proceed  to  the  execution  of  their  trust  without  him. 

SEC.  6.  If  the  judges  should  neglect  to  cause  the  notice  required  by 
the  first  Section  of  this  Article  to  be  given  within  the  time  therein 
limited,  they  may,  nevertheless,  cause  it  to  be  afterwards  given;  but 
their  neglect,  if  wilful,  is  hereby  declared  to  be  an  offence,  for  which 
they  may  be  impeached,  and  if  convicted  they  shall  be  punished  as  in 
other  cases  of  conviction  on  impeachment. 


574 


APPENDIX 


APPENDIX  SEC.  7.  The  Legislature  shall,  by  permanent  laws,  provide  such  fur- 
XIV  ther  regulations  as  may  be  necessary  for  the  more  orderly  election  of 
the  President,  not  contravening  the  provisions  herein  contained. 

SEC.  8.  The  President,  before  he  shall  enter  upon  the  execution  of  his 
office,  shall  take  an  oath  or  affirmation  faithfully  to  execute  the  same, 
and  to  the  utmost  of  his  judgment  and  power  to  protect  the  rights  of 
the  people  and  preserve  the  Constitution  inviolate. 

This  oath  or  affirmation  shall  be  administered  by  the  President  of 
the  Senate,  for  the  time  being,  in  the  presence  of  both  Houses  of  the 
Legislature. 

SEC.  9.  The  Senate  and  the  Assembly  shall  always  convene  in  ses- 
•sion  on  the  day  appointed  for  the  meeting  of  the  second  electors,  and 
shall  continue  sitting  till  the  President  take  the  oath  or  affirmation  of 
office.  He  shall  hold  his  office  during  good  behaviour,  removable  only 
by  conviction  upon  an  impeachment  for  some  crime  or  misdemeanor. 

SEC.  10.  The  President,  at  the  beginning  of  every  meeting  of  the 
Legislature,  as  soon  as  they  shall  be  ready  to  proceed  to  business,  shall 
convene  them  together  at  the  place  where  the  Senate  shall  sit,  and  shall 
communicate  to  them  all  such  matters  as  may  be  necessary  for  their 
information,  or  as  may  require  their  consideration.  He  may,  by  mes- 
sage, during  the  session,  communicate  all  other  matters  which  may  ap- 
pear to  him  proper.  He  may,  whenever  in  his  opinion  the  public  busi- 
ness shall  require  it,  convene  the  Senate  and  Assembly,  or  either  of 
them,  and  may  prorogue  them  for  a  time,  not  exceeding  forty  days  at 
one  prorogation;  and  if  they  should  disagree  about  their  adjournment, 
he  may  adjourn  them  to  such  time  as  he  shall  think  proper.  He  shall 
have  a  right  to  negative  all  bills,  resolutions,  or  acts  of  the  two  Houses 
of  the  Legislature  about  to  be  passed  into  laws.  He  shall  take  care  that 
the  laws  be  faithfully  executed.  He  shall  be  the  Commander-in-Chief 
of  the  Army  and  Navy  of  the  United  States  and  of  the  Militia  within  the 
several  States,  and  shall  have  the  direction  of  war,  when  commenced; 
but  he  shall  not  take  the  actual  command  in  the  field  of  an  army  with- 
out the  consent  of  the  Senate  and  the  Assembly. 

All  treaties,  conventions,  and  agreements  with  foreign  nations  shall 
be  made  by  him,  by  and  with  the  advice  and  consent  of  the  Senate.  He 
shall  have  the  appointment  of  the  principal  or  chief  officer  of  each  of  the 
departments  of  war,  naval  affairs,  finances,  and  foreign  affairs;  and 
shall  have  the  nomination,  and,  by  and  with  the  consent  of  the  Senate, 
the  appointment  of  all  other  officers  to  be  appointed  under  the  author- 
ity of  the  United  States,  except  such  for  whom  different  provision  is 
made  by  this  Constitution;  and  provided,  that  this  shall  not  be  con- 
strued to  prevent  the  Legislature  from  appointing  by  name,  in  their 
laws,  persons  to  special  and  particular  trusts  created  in  such  laws ;  nor 
shall  be  construed  to  prevent  principals  in  office,  merely  ministerial, 
from  constituting  deputies.  In  the  recess  of  the  Senate  he  may  fill  va- 
cancies in  offices,  by  appointments,  to  continue  in  force  until  the  end 
of  the  next  session  of  the  Senate;  and  he  shall  commission  all  officers. 
He  shall  have  power  to  pardon  all  offences  except  treason,  for  which 


APPENDIX  575 

he  may  grant  reprieves  until  the  opinion  of  the  Senate  and  the     APPENDIX 
Assembly  can  be  had,  and  with  their  concurrence  may  pardon  the         XIV 
same. 

SEC.  II.  He  shall  receive  a  fixed  compensation  for  his  services,  to  be 
paid  to  him  at  stated  times,  and  to  be  increased  or  diminished  during 
his  continuance  of  office. 

SEC.  12.  If  he  depart  out  of  the  United  States  without  the  consent  of 
the  Senate  &  Assembly,  he  shall  thereby  abdicate  his  office. 

SEC.  13.  He  may  be  impeached  for  any  crime  or  misdemeanor  by 
the  two  Houses  of  the  Legislature,  two  thirds  of  each  House  concur- 
ring ;  and  if  convicted  shall  be  removed  from  office.  He  may  be  after- 
ward tried  and  punished  in  the  ordinary  course  of  law.  His  impeach- 
ment shall  operate  as  a  suspension  from  office  until  the  determination 
thereof. 

SEC.  14.  The  President  of  the  Senate  shall  be  Vice-President  of  the 
United  States.  On  the  death,  resignation,  impeachment,  removal  from 
office,  or  absence  from  the  United  States  of  the  President  thereof,  the 
Vice-President  shall  exercise  all  the  powers  by  this  Constitution  vested 
in  the  President,  until  another  shall  be  appointed,  or  until  he  shall 
return  within  the  United  States,  if  his  absence  was  with  the  consent  of 
the  Senate  and  Assembly. 

ARTICLE  V 

SEC.  I.  There  shall  be  a  chief -justice  of  the  Supreme  Court,  and  he, 
with  the  other  judges  thereof,  shall  hold  their  offices  during  good  be- 
haviour, removable  only  by  conviction  on  impeachment  for  some  crime 
or  misdemeanor.  Each  judge  shall  have  a  competent  salary,  to  be  paid 
to  him  at  stated  times,  and  not  to  be  diminished  during  his  continuance 
in  office. 

The  Supreme  Court  shall  have  original  jurisdiction  in  all  causes  in 
which  the  United  States  shall  be  a  party;  in  all  controversies  between 
the  United  States  and  a  particular  State,  or  between  two  or  more  States, 
except  such  as  relate  to  a  claim  of  territory  between  the  United  States 
and  one  or  more  States,  which  shall  be  determined  in  the  mode  pre- 
scribed in  the  6th  Article;  in  all  cases  affecting  foreign  ministers,  con- 
suls and  agents;  and  an  appellate  jurisdiction,  both  as  to  law  and  fact, 
in  all  cases  which  shall  concern  the  citizens  of  different  States,  and  in  all 
others  in  which  the  fundamental  rights  of  this  Constitution  are  involved, 
subject  to  such  exceptions  as  are  herein  contained,  and  to  such  regula- 
tions as  the  Legislature  shall  provide. 

The  judges  of  all  courts  which  may  be  constituted  by  the  Legislature 
shall  also  hold  their  places  during  good  behaviour,  removable  only  by 
conviction  on  impeachment  for  some  crime  or  misdemeanor;  and  shall 
have  competent  salaries,  to  be  paid  at  stated  times,  and  not  to  be  di- 
minished during  their  continuance  in  office;  but  nothing  herein  con- 
tained shall  be  construed  to  prevent  the  Legislature  from  abolishing 
such  courts  themselves. 


576  APPENDIX 

APPENDIX  All  crimes,  except  upon  impeachment,  shall  be  tried  by  a  jury  of 
XIV  twelve  men;  and  if  they  shall  have  been  committed  within  any  State, 
shall  be  tried  within  such  State.  And  all  civil  causes  arising  under  this 
Constitution  of  the  like  kind  with  those  which  have  been  heretofore 
triable  by  jury  in  the  respective  States,  shall  in  like  manner  be  tried  by 
jury,  unless  in  special  cases  the  Legislature  shall  think  proper  to  make 
different  provision,  to  which  provision  the  concurrence  of  two  thirds  of 
both  Houses  shall  be  necessary. 

Impeachments  of  the  President  and  Vice-President  of  the  United 
States,  members  of  the  Senate,  the  Governors  and  Presidents  of  the 
several  States,  the  principal  or  chief  officers  of  the  departments  enum- 
erated in  the  loth  Section  of  the  4th  Article,  ambassadors,  and  other 
like  public  ministers,  the  judges  of  the  Supreme  Court,  generals  and 
admirals  of  the  navy,  shall  be  tried  by  a  court  to  consist  of  the  judges 
of  the  Supreme  Court,  and  the  chief-justice,  or  first  or  senior  judge  of 
the  Superior  Court  of  law  in  each  State,  of  whom  twelve  shall  constitute 
a  court.  A  majority  of  the  judges  present  may  convict.  All  other  per- 
sons shall  be  tried  on  impeachment,  by  a  court  to  consist  of  the  judges 
of  the  Supreme  Court,  and  six  Senators  drawn  by  lot;  a  majority  of 
whom  may  convict.  Impeachments  shall  clearly  specify  the  particular 
offence  for  which  the  party  accused  is  to  be  tried;  and  judgment  on 
conviction  upon  the  trial  thereof  shall  be  either  a  removal  from  office 
singly,  or  removal  from  office  and  disqualification  for  holding  any  future 
office  or  place  of  trust.  But  no  judgment  on  impeachment  shall  prevent 
prosecution  and  punishment  in  the  ordinary  course  of  law,  provided 
that  no  judge  concerned  in  such  conviction  shall  sit  as  judge  on  the 
second  trial.  The  Legislature  may  remove  the  disabilities  incurred  by 
conviction  on  impeachment. 

ARTICLE  VI 

Controversies  about  the  right  of  territory  between  the  United  States 
and  particular  States  shall  be  determined  by  a  court  to  be  constituted 
in  manner  following:  The  State  or  States  claiming  in  opposition  to  the 
United  States,  as  parties,  shall  nominate  a  number  of  persons  equal  to 
double  the  number  of  the  judges  of  the  Supreme  Court,  for  the  time 
being,  of  whom  none  shall  be  citizens  by  birth  of  the  States  which  are 
parties,  nor  inhabitants  thereof,  when  nominated,  and  of  whom  not 
more  than  two  shall  have  their  actual  residence  in  one  State.  Out  of  the 
persons  so  nominated,  the  Senate  shall  elect  one  half,  who,  together  with 
the  judges  of  the  Supreme  Court,  shall  form  the  court.  Two  thirds  of  the 
whole  number  may  hear  and  determine  the  controversy,  by  plurality  of 
voices.  The  States  concerned  may,  at  their  option,  claim  a  decision  by 
the  Supreme  Court  only.  All  the  members  of  the  court  hereby  instituted 
shall,  prior  to  the  hearing  of  the  cause,  take  an  oath  impartially,  and  ac- 
cording to  the  best  of  their  judgments  and  consciences,,  to  hear  and  de- 
termine the  controversy. 


APPENDIX  577 


ARTICLE  VII 

SEC.  I.  The  Legislature  of  the  United  States  shall  have  power  to  pass 
all  laws  which  they  shall  judge  necessary  to  the  common  defence  and 
safety,  and  to  the  general  welfare  of  the  Union.  But  no  bill,  resolution, 
or  act  of  the  Senate  and  Assembly  shall  have  the  force  of  a  law  until  it 
shall  have  received  the  assent  of  the  President,  or  of  the  Vice-President 
when  exercising  the  powers  of  the  President;  and  if  such  assent  shall 
not  have  been  given  within  ten  days  after  such  bill,  resolution,  or  other 
act  shall  have  been  presented  for  that  purpose,  the  same  shall  not  be  a 
law.  No  bill,  resolution,  or  other  act  not  assented  to  shall  be  revived  in 
the  same  session  of  the  Legislature.  The  mode  of  signifying  such  assent 
shall  be  by  signing  the  bill,  act  or  resolution,  and  returning  it  so  signed 
to  either  House  of  the  Legislature. 

SEC.  2.  The  enacting  style  of  all  laws  shall  be:  Be  it  enacted  by  the 
people  of  the  United  States  of  America. 

SEC.  3.  No  bill  of  attainder  shall  be  passed,  nor  any  ex-post-facto  law; 
nor  shall  any  title  of  nobility  be  granted  by  the  United  States,  or  by 
either  of  them  ;  nor  shall  any  person  holding  an  office  or  place  of  trust 
under  the  United  States,  without  the  permission  of  the  Legislature, 
accept  any  present,  emolument,  office,  or  title  from  a  foreign  prince  or 
state.  Nor  shall  any  religious  sect  or  denomination,  or  religious  test  for 
any  office  or  place,  be  ever  established  by  law. 

SEC.  4.  Taxes  on  lands,  houses,  and  other  real  estate,  and  capitation 
taxes,  shall  be  proportioned  in  each  State  by  the  whole  number  of  free 
persons,  except  Indians  not  taxed,  and  by  three  fifths  of  all  other 
persons. 

SEC.  5.  The  two  Houses  of  the  Legislature  may  by  joint  ballot  ap- 
point a  Treasurer  of  the  United  States.  Neither  House  (in  the  session 
of  both  Houses)  without  the  consent  of  the  other  shall  adjourn  for  more 
than  three  days  at  a  time.  The  Senators  &  Representatives  in  attend- 
ing, going  to  and  coming  from  the  session  of  their  respective  Houses 
shall  be  privileged  from  arrest  except  for  crimes  and  breaches  of  the 
peace.  The  place  of  meeting  shall  always  be  at  the  seat  of  government, 
which  shall  be  fixed  by  law. 

SEC.  6.  The  laws  of  the  United  States  and  the  treaties  which  have 
been  made  under  the  Articles  of  the  Confederation,  and  which  shall  be 
made  under  this  Constitution,  shall  be  the  supreme  law  of  the  land,  and 
shall  be  so  construed  by  the  courts  of  the  several  States. 

SEC.  7.  The  Legislature  shall  convene  at  least  once  in  each  year, 
which,  unless  otherwise  provided  for  by  law,  shall  be  the  first  Monday 
in  December. 

SEC.  8.  The  members  of  the  two  Houses  of  the  Legislature  shall 
receive  a  reasonable  compensation  for  their  services,  to  be  paid  out  of 
the  treasury  of  the  United  States,  and  ascertained  by  law.  The  law  for 
making  such  provision  shall  be  passed,  with  the  concurrence  of  the  first 
Assembly,  and  shall  extend  to  succeeding  Assemblies;  and  no  succeeding 
Assembly  shall  concur  in  an  alteration  of  such  provision  so  as  to  increase 


APPENDIX 

APPENDIX     its  own  compensation;  but  there  shall  be  always  a  law  in  existence  for 
XIV          making  such  provision. 

ARTICLE  VIII 

SEC.  i.  The  Governor  or  President  of  each  State  shall  be  appointed 
under  the  authority  of  the  United  States,  and  shall  have  a  right  to 
negative  all  laws  about  to  be  passed  in  the  State  of  which  he  shall  be 
Governor  or  President,  subject  to  such  qualifications  and  regulations  as 
the  Legislature  of  the  United  States  shall  prescribe.  He  shall  in  other 
respects  have  the  same  powers  only  which  the  Constitution  of  the 
State  does  or  shall  allow  its  Governor  or  President,  except  as  to  the  ap- 
pointment of  officers  of  the  militia. 

SEC.  2.  Each  Governor  or  President  of  a  State  shall  hold  his  office 
until  a  successor  be  actually  appointed,  unless  he  die  or  resign  or  be 
removed  from  office  by  conviction  on  impeachment.  There  shall  be  no 
appointment  of  such  Governor  or  President  in  the  recess  of  the  Senate. 

The  Governors  and  Presidents  of  the  several  States  at  the  time  of  the 
ratification  of  this  Constitution,  shall  continue  in  office  in  the  same 
manner  and  with  the  same  powers  as  if  they  had  been  appointed  pur- 
suant to  the  first  Section  of  this  Article. 

The  officers  of  the  militia  in  the  several  States  may  be  appointed  under 
the  authority  of  the  United  States,  the  Legislature  whereof  may  author- 
ize the  Governors  or  Presidents  of  States  to  make  such  appointments, 
with  such  restrictions  as  they  shall  think  proper. 

ARTICLE   IX 

SEC.  i.  No  person  shall  be  eligible  to  the  office  of  President  of  the 
United  States  unless  he  be  now  a  citizen  of  one  of  the  States,  or  here- 
after be  born  a  citizen  of  the  United  States. 

SEC.  2.  No  person  shall  be  eligible  as  a  Senator  or  Representative 
unless  at  the  time  of  his  election  he  be  a  citizen  and  inhabitant  of  the 
State  in  which  he  is  chosen ;  provided  that  he  shall  not  be  deemed  to  be 
disqualified  by  a  temporary  absence  from  the  state. 

SEC.  3.  No  person  entitled  by  this  Constitution  to  elect  or  to  be 
elected  President  of  the  United  States,  or  a  Senator  or  Representative 
in  the  Legislature  thereof,  shall  be  disqualified  but  by  the  conviction  of 
some  offence  for  which  the  law  shall  have  previously  ordained  the  pun- 
ishment of  disqualification.  But  the  Legislature  may  by  law  provide 
that  persons  holding  offices  under  the  United  States,  or  either  of  them, 
shall  not  be  eligible  to  a  place  in  the  Assembly  or  Senate,  and  shall  be, 
during  their  continuance  in  office,  suspended  from  sitting  in  the  Senate. 

SEC.  4.  No  person  having  an  office  or  place  of  trust  under  the  United 
States  shall,  without  permission  of  the  Legislature,  accept  any  present, 
emolument,  office  or  title  from  any  foreign  prince  or  state. 

SEC.  5.  The  citizens  of  each  State  shall  be  entitled  to  the  rights, 
privileges,  and  immunities  of  citizens  in  every  other  State ;  and  full  faith 
and  credit  shall  be  given  in  each  State  to  the  public  acts,  records,  and 
judicial  proceedings  of  another. 


APPENDIX  579 

SEC.  6.  Fugitives  from  justice  from  one  State  who  shall  be  found  in     APPENDIX 
another,  shall  be  delivered  up  on  the  application  of  the  State  from         XIV 
which  they  fled. 

SEC.  7.  No  new  State  shall  be  erected  within  the  limits  of  another, 
or  by  the  junction  of  two  or  more  without  the  concurrent  consent  of  the 
Legislatures  of  the  United  States  and  of  the  States  concerned.  The 
Legislature  of  the  United  States  may  admit  new  States  into  the  Union. 

SEC.  8.  The  United  States  are  hereby  declared  to  be  bound  to  guar- 
antee to  each  State  a  republican  form  of  government,  and  to  protect 
each  State  as  well  against  domestic  violence  as  foreign  invasion. 

SEC.  9.  All  treaties,  contracts,  and  engagements  of  the  United  States 
of  America,  under  the  Articles  of  Confederation  and  Perpetual  Union, 
shall  have  equal  validity  under  this  Constitution. 

SEC.  10.  No  State  shall  enter  into  a  treaty,  alliance,  or  contract  with 
another,  or  with  a  foreign  power  without  the  consent  of  the  United 
States. 

SEC.  II.  The  members  of  the  Legislature  of  the  United  States,  and 
of  each  State,  and  all  officers,  executive  and  judicial,  of  the  one  &  of  the 
other,  shall  take  an  oath  or  affirmation  to  support  the  Constitution  of 
the  United  States. 

SEC.  12.  This  Constitution  may  receive  such  alterations  and  amend- 
ments as  may  be  proposed  by  the  Legislature  of  the  United  States,  with 
the  concurrence  of  two  thirds  of  the  members  of  both  Houses  and  ratified 
by  the  Legislatures  of,  or  by  conventions  of  deputies  chosen  by  the 
people  in,  two  thirds  of  the  States  composing  the  Union. 

ARTICLE  X 

This  Constitution  shall  be  submitted  to  the  consideration  of  Conven- 
tions in  the  several  States,  respectively,  under  the  direction  of  their 
respective  Legislatures.  Each  Convention  which  shall  ratify  the  same, 
shall  appoint  the  first  Representatives  and  Senators  from  such  State 
according  to  the  rule  prescribed  in  the section  of  the arti- 
cle. The  Representatives  so  appointed  shall  continue  in  office  for  one 
year  only.  Each  Convention  so  ratifying  shall  give  notice  thereof  to  the 
Congress  of  the  United  States,  transmitting  at  the  same  time  a  list  of  the 
Representatives  and  Senators  chosen.  When  the  Constitution  shall 
have  been  duly  ratified,  Congress  shall  give  notice  of  a  day  and  place 
for  the  meeting  of  the  Senators  and  Representatives  from  the  several 
States;  and  when  these,  or  a  majority  of  them,  shall  have  assembled 
according  to  such  notice,  they  shall  by  joint  ballot,  by  plurality  of  votes, 
elect  a  President  of  the  United  States;  and  the  Constitution  thus  organ- 
ized shall  be  carried  into  effect. 


XV 

THE   NEW   JERSEY   PLAN    INTRODUCED    BY 
PATERSON   ON   JUNE    15 

APPENDIX         I .  Resolved,  That  the  Articles  of  Confederation  ought  to  be  so  revised , 
XV  corrected  and  enlarged,  as  to  render  the  federal  Constitution  adequate 

to  the  exigencies  of  government,  and  the  preservation  of  the  Union. 

2.  Resolved,  That,  in  addition  to  the  powers  vested  in  the  United 
States  in  Congress  by  the  present  existing  Articles  of  Confederation, 
they  be  authorized  to  pass  acts  for  raising  a  revenue,  by  levying  a  duty 
or  duties  on  all  goods  or  merchandises  of  foreign  growth  or  manufacture, 
imported  into  any  part  of  the  United  States;  by  stamps  on  paper,  vel- 
lum, or  parchment;  and  by  a  postage  on  all  letters  or  packages  passing 
through  the  general  post-office ;  — to  be  applied  to  such  federal  pur- 
poses as  they  shall  deem  proper  and  expedient:  to  make  rules  and  regu- 
lations for  the  collection  thereof;  and  the  same,  from  time  to  time,  to 
alter  and  amend  in  such  manner  as  they  shall  think  proper:  to  pass  acts 
for  the  regulation  of  trade  and  commerce,  as  well  with  foreign  nations 
as  with  each  other;  —  provided  that  all  punishments,  fines,  forfeitures, 
and  penalties,  to  be  incurred  for  contravening  such  acts,  rules,  and 
regulations,  shall  be  adjudged  by  the  common-law  judiciaries  of  the 
state  in  which  any  offence  contrary  to  the  true  intent  and  meaning  of 
such  acts,  rules,  and  regulations,  shall  have  been  committed  or^  perpe- 
trated, with  liberty  of  commencing  in  the  first  instance  all  suits  and 
prosecutions  for  that  purpose  in  the  superior  common-law  judiciary  in 
such  state;  subject,  nevertheless,  for  the  correction  of  all  errors,  both 
in  law  and  fact,  in  rendering  judgment,  to  an  appeal  to  the  judiciary  of 
the  United  States 

3.  Resolved,  That  whenever  requisitions  shall  be  necessary,  instead 
of  the  rule  for  making  requisitions  mentioned  in  the  Articles  of  Confed- 
eration, the  United  States  in  Congress  be  authorized  to  make  such 
requisitions  in  proportion  to  the  whole  number  of  white  and  other  free 
citizens  and  inhabitants,  of  every  age,  sex,  and  condition,  including 
those  bound  to  servitude  for  a  term  of  years,  and  three  fifths  of  all  other 
persons  not  comprehended  in  the  foregoing  description,  except  Indians 
not  paying  taxes;  that,  if  such  requisitions  be  not  complied  with  in  the 
time  specified  therein,  to  direct  the  collection  thereof  in  the  non-com- 
plying states,  and  for  that  purpose  to  devise  and  pass  acts  directing  and 
authorizing  the  same;  —  provided,  that  none  of  the  powers  hereby 
vested  in  the  United  States  in  Congress  shall  be  exercised  without  the 

consent  of  at  least states;  and  in  that  proportion,  if  the  number 

of  confederated  states  should  hereafter  be  increased  or  diminished. 


APPENDIX  581 

4.  Resolved,  That  the  United  States  in  Congress  be  authorized  to     APPENDIX 

elect  a  federal  executive,  to  consist  of persons;  to  continue  in          XV 

office  for  the  term  of years ;  to  receive  punctually,  at  stated  times, 

a  fixed  compensation  for  their  services,  in  which  no  increase  nor  dimi- 
nution shall  be  made  so  as  to  affect  the  persons  composing  the  executive 
at  the  time  of  such  increase  or  diminution;  to  be  paid  out  of  the  federal 
treasury;  to  be  incapable  of  holding  any  other  office  or  appointment 

during  their  time  of  service,  and  for years  thereafter;  to  be 

ineligible  a  second  time,  and  removable  by  Congress,  on  application  by 
a  majority  of  the  executives  of  the  several  states:  that  the  executive, 
besides  their  general  authority  to  execute  the  federal  acts,  ought  to 
appoint  all  federal  officers  not  otherwise  provided  for,  and  to  direct  all 
military  operations;  —  provided,  that  none  of  the  persons  composing 
the  federal  executive  shall,  on  any  occasion,  take  command  of  any  troops, 
so  as  personally  to  conduct  any  military  enterprise,  as  general,  or  in  any 
other  capacity. 

5.  Resolved,  That  a  federal  judiciary  be  established,  to  consist  of  a 
supreme  tribunal,  the  judges  of  which  to  be  appointed  by  the  executive, 
and  to  hold  their  offices  during  good  behaviour;  to  receive  punctually, 
at  stated  times,  a  fixed  compensation  for  their  services,  in  which  no 
increase  nor  diminution  shall  be  made  so  as  to  affect  the  persons  actu- 
ally in  office  at  the  time  of  such  increase  or  diminution.  That  the  judi- 
ciary so  established  shall  have  authority  to  hear  and  determine,  in  the 
first  instance,  on  all  impeachments  of  federal  officers,  and,  by  way  of 
appeal,  in  the  dernier  ressort,  in  all  cases  touching  the  rights  of  ambassa- 
dors ;  in  all  cases  of  captures  from  an  enemy ;  in  all  cases  of  piracies  and 
felonies  on  the  high  seas;  in  all  cases  in  which  foreigners  may  be  inter- 
ested ;  in  the  construction  of  any  treaty  or  treaties,  or  which  may  arise 
on  any  of  the  acts  for  the  regulation  of  trade,  or  the  collection  of  the 
federal  revenue:  that  none  of  the  judiciary  shall,  during  the  time  they 
remain  in  office,  be  capable  of  receiving  or  holding  any  other  office  or 
appointment  during  their  term  of  service,  or  for  —       -  thereafter. 

6.  Resolved,  That  all  acts  of  the  United  States  in  Congress,  made  by 
virtue  and  in  pursuance  of  the  powers  hereby,  and  by  the  Articles  of 
Confederation,  vested  in  them,  and  all  treaties  made  and  ratified  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the 
respective  states,  so  far  forth  as  those  acts  or  treaties  shall  relate  to  the 
said  states  or  their  citizens;  and  that  the  judiciary  of  the  several  states 
shall  be  bound  thereby  in  their  decisions,  any  thing  in  the  respective 
laws  of  the  individual  states  to  the  contrary  notwithstanding ;  and  that 
if  any  state,  or  any  body  of  men  in  any  state,  shall  oppose  or  prevent 
the  carrying  into  execution  such  acts  or  treaties,  the  federal  executive 
shall  be  authorized  to  call  forth  the  power  of  the  confederated  states, 
or  so  much  thereof  as  may  be  necessary,  to  enforce  and  compel  an 
obedience  to  such  acts,  or  an  observance  of  such  treaties. 

7.  Resolved,  That  provision  be  made  for  the  admission  of  new  states 
into  the  Union. 


582  APPENDIX 

APPENDIX         8.  Resolved,  That  the  rule  for  naturalization  ought  to  be  the  same  in 
XV  every  state. 

9.  Resolved,  That  a  citizen  of  one  state,  committing  an  offence  in 
another  state  of  the  Union,  shall  be  deemed  guilty  of  the  same  offence 
as  if  it  had  been  committed  by  a  citizen  of  the  state  in  which  the  offence 
was  committed. 


XVI 

THE  TWENTY-THREE  RESOLUTIONS   REFERRED 
TO  THE  COMMITTEE  OF  DETAIL  JULY  26 

1.  Resolved,  That  the  government  of  the  United  States  ought  to  con-     APPENDIX 
sist  of  a  supreme  legislative,  judiciary,  and  executive.  XVI 

2.  Resolved,  That  the  legislature  consist  of  two  branches. 

3.  Resolved,  That  the  members  of  the  first  branch  of  the  legislature 
ought  to  be  elected  by  the  people  of  the  several  states  for  the  term  of 
two  years;  to  be  paid  out  of  the  public  treasury;  to  receive  an  adequate 
compensation  for  their  services;  to  be  of  the  age  of  twenty-five  years  at 
least;  to  be  ineligible  to,  and  incapable  of  holding,  any  office  under  the 
authority  of  the  United  States  (except  those  peculiarly  belonging  to  the 
functions  of  the  first  branch)  during  the  term  of  service  of  the  first 
branch. 

4.  Resolved,  That  the  members  of  the  second  branch  of  the  legislature 
of  the  United  States  ought  to  be  chosen  by  the  individual  legislatures; 
to  be  of  the  age  of  thirty  years  at  least;  to  hold  their  offices  for  six  years, 
one  third  to  go  out  biennially;  to  receive  a  compensation  for  the  devo- 
tion of  their  time  to  the  public  service;  to  be  ineligible  to,  and  incapable 
of  holding,  any  office  under  the  authority  of  the  United  States  (except 
those  peculiarly  belonging  to  the  functions  of  the  second  branch)  during 
the  term  for  which  they  are  elected,  and  for  one  year  thereafter. 

5.  Resolved,  That  each  branch  ought  to  possess  the  right  of  originat- 
ing acts. 

6.  Resolved,  That  the  national  legislature  ought  to  possess  the  legis- 
lative rights  vested  in  Congress  by  the  Confederation;  and,  moreover, 
to  legislate  in  all  cases  for  the  general  interests  of  the  Union,  and  also 
in  those  to  which  the  states  are  separately  incompetent,  or  in  which  the 
harmony  of  the  United  States  may  be  interrupted  by  the  exercise  of 
individual  legislation. 

7.  Resolved,  That  the  legislative  acts  of  the  United  States,  made  by 
virtue  and  in  pursuance  of  the  Articles  of  Union,  and  all  treaties  made 
and  ratified  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  respective  states,  as  far  as  those  acts  or  treaties  shall 
relate  to  the  said  states,  or  their  citizens  and  inhabitants;  and  that  the 
judiciaries  of  the  several  states  shall  be  bound  thereby  in  their  decisions, 
anything  in  the  respective  laws  of  the  individual  states  to  the  contrary 
notwithstanding. 

8.  Resolved,  That,  in  the  general  formation  of  the  legislature  of  the 
United  States,  the  first  branch  thereof  shall  consist  of  sixty-five  mem- 
bers; of  which  number, 


584  APPENDIX 

APPENDIX         New  Hampshire  shall  send  3;  Massachusetts,  8;  Rhode  Island,  i; 
XVI          Connecticut,  5;  New  York,  6;  New  Jersey,  4;  Pennsylvania,  8;  Dela- 
ware, i ;  Maryland,  6;  Virginia,  10;  North  Carolina,  5;  South  Carolina, 
5 ;  Georgia,  3. 

But,  as  the  present  situation  of  the  states  may  probably  alter  in  the 
number  of  their  inhabitants,  the  legislature  of  the  United  States  shall  be 
authorized,  from  time  to  time,  to  apportion  the  number  of  representa- 
tives; and  in  case  any  of  the  states  shall  hereafter  be  divided,  or  en- 
larged by  addition  of  territory,  or  any  two  or  more  states  united,  or  any 
new  states  created  within  the  limits  of  the  United  States,  the  legislature 
of  the  United  States  shall  possess  authority  to  regulate  the  number  of 
representatives,  in  any  of  the  foregoing  cases,  upon  the  principle  of  their 
number  of  inhabitants,  according  to  the  provisions  hereafter  mentioned, 
namely  —  Provided  always,  that  representation  ought  to  be  propor- 
tioned to  direct  taxation.  And,  in  order  to  ascertain  the  alteration  in 
the  direct  taxation  which  may  be  required  from  time  to  time,  by  the 
changes  in  the  relative  circumstances  of  the  states,  — 

9.  Resolved,  That  a  census  be  taken  within  six  years  from  the  first 
meeting  of  the  legislature  of  the  United  States,  and  once  within  the 
term  of  every  ten  years  afterwards,  of  all  the  inhabitants  of  the  United 
States,  in  the  manner  and  according  to  the  ratio  recommended  by  Con- 
gress in  their  resolution  of  the  1 8th  of  April,  1783;  and  that  the  legis- 
lature of  the  United  States  shall  proportion  the  direct  taxation  accord- 
ingly. 

10.  Resolved,  That  all  bills  for  raising  or  appropriating  money,  and 
for  fixing  the  salaries  of  the  officers  of  the  government  of  the  United 
States,  shall  originate  in  the  first  branch  of  the  legislature  of  the  United 
States,  and  shall  not  be  altered  or  amended  by  the  second  branch ;  and 
that  no  money  shall  be  drawn  from  the  public  treasury  but  in  pursu- 
ance of  appropriations  to  be  originated  by  the  first  branch. 

11.  Resolved,  That,  in  the  second  branch  of  the  legislature  of  the 
United  States,  each  state  shall  have  an  equal  vote. 

12.  Resolved,  That  a  national  executive  be  instituted,  to  consist  of  a 
single  person;  to  be  chosen  by  the  national  legislature  for  the  term  of 
seven  years;  to  be  ineligible  a  second  time;  with  power  to  carry  into 
execution  the  national  laws;  to  appoint  to  offices  in  cases  not  otherwise 
provided  for ;  to  be  removable  on  impeachment,  and  conviction  of  mal- 
practice or  neglect  of  duty ;  to  receive  a  fixed  compensation  for  the  de- 
votion of  his  time  to  the  public  service,  to  be  paid  out  of  the  public 
treasury. 

13.  Resolved,  That  the  national  executive  shall  have  a  right  to  nega- 
tive any  legislative  act;  which  shall  not  be  afterwards  passed,  unless  by 
two  thirds  part  of  each  branch  of  the  national  legislature. 

14.  Resolved,  That  a  national  judiciary  be  established,  to  consist  of 
one  supreme  tribunal,  the  judges  of  which  shall  be  appointed  by  the 
second  branch  of  the  national  legislature;  to  hold  their  offices  during 
good  behaviour;  to  receive  punctually,  at  stated  times,  a  fixed  compensa- 
tion for  their  services,  in  which  no  diminution  shall  be  made  so  as  to 
affect  the  persons  actually  in  office  at  the  time  of  such  diminution. 


APPENDIX  585 

15.  Resolved,  That  the  national  legislature  be  empowered  to  appoint     APPENDIX 
inferior  tribunals.  XVI 

1 6.  Resolved,  That  the  jurisdiction  of  the  national  judiciary  shall 
extend  to  cases  arising  under  laws  passed  by  the  general  legislature,  and 
to  such  other  questions  as  involve  the  national  peace  and  harmony. 

17.  Resolved,  That  provision  ought  to  be  made  for  the  admission  of 
states  lawfully  arising  within  the  limits  of  the  United  States,  whether 
from  a  voluntary  junction  of  government  and  territory,  or  otherwise, 
with  the  consent  of  a  number  of  voices  in  the  national  legislature  less 
than  the  whole. 

1 8.  Resolved,  That  a  republican  form  of  government  shall  be  guaran- 
teed to  each  state ;  and  that  each  state  shall  be  protected  against  foreign 
and  domestic  violence. 

19.  Resolved,  That  provision  ought  to  be  made  for  the  amendment 
of  the  Articles  of  Union,  whensoever  it  shall  seem  necessary. 

20.  Resolved,  That  the  legislative,  executive,  and  judiciary  powers, 
within  the  several  states,  and  of  the  national  government,  ought  to  be 
bound,  by  oath,  to  support  the  Articles  of  Union. 

21.  Resolved,  That  the  amendments  which  shall  be  offered  to  the 
Confederation  by  the  Convention  ought,  at  a  proper  time  or  times, 
after  the  approbation  of  Congress,  to  be  submitted  to  an  assembly,  or 
assemblies,  of  representatives,  recommended  by  the  several  legislatures, 
to  be  expressly  chosen  by  the  people  to  consider  and  decide  thereon. 

22.  Resolved,  That  the  representation  in  the  second  branch  of  the 
legislature  of  the  United  States  shall  consist  of  two  members  from  each 
state,  who  shall  vote  per  capita. 

23.  Resolved,  That  it  be  an  instruction  to  the  committee  to  whom  were 
referred  the  proceedings  of  the  Convention  for  the  establishment  of  a 
national  government,  to  receive  a  clause,  or  clauses,  requiring  certain 
qualifications  of  property  and  citizenship  in  the  United  States  for  the 
executive,  the  judiciary,  and  the  members  of  both  branches  of  the 
legislature  of  the  United  States.1 

1  With    the    above    Resolutions      29th  of  May,  and  by  Mr.  Paterson 
were  referred  the  propositions  of-       on  the  I5th  of  June, 
fered  by  Mr.  C.  Pinckney  on  the 


XVII 

DRAFT   OF   CONSTITUTION    REPORTED    BY   THE 
COMMITTEE  OF  DETAIL  ON  AUGUST  6 

APPENDIX  WE,  the  people  of  the  states  of  New  Hampshire,  Massachusetts, 
XVII  Rhode  Island  and  Providence  Plantations,  Connecticut,  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  and  Georgia,  do  ordain,  declare,  and  es- 
tablish, the  following  Constitution  for  the  government  of  ourselves 
and  our  posterity:  — 

ARTICLE  I.  The  style  of  the  government  shall  be,  "The  United  States 
of  America." 

ART.  II.  The  government  shall  consist  of  supreme  legislative, 
executive,  and  judicial  powers. 

ART.  III.  The  legislative  power  shall  be  vested  in  a  Congress,  to 
consist  of  two  separate  and  distinct  bodies  of  men,  a  House  of  Repre- 
sentatives and  a  Senate ;  each  of  which  shall  in  all  cases  have  a  negative 
on  the  other.  The  legislature  shall  meet  on  the  first  Monday  in  Decem- 
ber in  every  year. 

ART.  IV,  SECT.  I.  The  members  of  the  House  of  Representatives 
shall  be  chosen,  every  second  year,  by  the  people  of  the  several  states 
comprehended  within  this  Union.  The  qualifications  of  the  electors 
shall  be  the  same,  from  time  to  time,  as  those  of  the  electors,  in  the 
several  states,  of  the  most  numerous  branch  of  their  own  legislatures. 

SECT.  2.  Every  member  of  the  House  of  Representatives  shall  be  of 
the  age  of  twenty-five  years  at  least;  shall  have  been  a  citizen  in  the 
United  States  for  at  least  three  years  before  his  election ;  and  shall  be, 
at  the  time  of  his  election,  a  resident  of  the  state  in  which  he  shall 
be  chosen. 

SECT.  3.  The  House  of  Representatives  shall,  at  its  first  formation, 
and  until  the  number  of  citizens  and  inhabitants  shall  be  taken  in  the 
manner  hereinafter  described,  consist  of  sixty-five  members,  of  whom 
three  shall  be  chosen  in  New  Hampshire,  eight  in  Massachusetts,  one 
in  Rhode  Island  and  Providence  Plantations,  five  in  Connecticut,  six 
in  New  York,  four  in  New  Jersey,  eight  in  Pennsylvania,  one  in  Dela- 
ware, six  in  Maryland,  ten  in  Virginia,  five  in  North  Carolina,  five  in 
South  Carolina,  and  three  in  Georgia. 

SECT.  4.  As  the  proportions  of  numbers  in  different  states  will  alter 
from  time  to  time;  as  some  of  the  states  may  hereafter  be  divided;  as 
others  may  be  enlarged  by  addition  of  territory ;  as  two  or  more  states 
may  be  united;  as  new  states  will  be  erected  within  the  limits  of  the 
United  States,  —  the  legislature  shall,  in  each  of  these  cases,  regulate 


APPENDIX  587 

the  number  of  representatives  by  the  number  of  inhabitants,  accord-     APPENDIX 
ing  to  the  provisions  hereinafter  made,  at  the  rate  of  one  for  every        XVII 
forty  thousand. 

SECT.  5.  All  bills  for  raising  or  appropriating  money,  and  for  fixing 
the  salaries  of  the  officers  of  government,  shall  originate  in  the  House 
of  Representatives,  and  shall  not  be  altered  or  amended  by  the  Senate. 
No  money  shall  be  drawn  from  the  public  treasury  but  in  pursuance  of 
appropriations  that  shall  originate  in  the  House  of  Representatives. 

SECT.  6.  The  House  of  Representatives  shall  have  the  sole  power  of 
impeachment.  It  shall  choose  its  Speaker  and  other  officers. 

SECT.  7.  Vacancies  in  the  House  of  Representatives  shall  be  sup- 
plied by  writs  of  election  from  the  executive  authority  of  the  state  in  the 
representation  from  which  they  shall  happen. 

ART.  V,  SECT.  i.  The  Senate  of  the  United  States  shall  be  chosen  by 
the  legislatures  of  the  several  states.  Each  legislature  shall  choose  two 
members.  Vacancies  may  be  supplied  by  the  executive  until  the  next 
meeting  of  the  legislature.  Each  member  shall  have  one  vote. 

SECT.  2.  The  senators  shall  be  chosen  for  six  years;  but  immediately 
after  the  first  election,  they  shall  be  divided,  by  lot,  into  three  classes, 
as  nearly  as  may  be,  numbered  one,  two,  and  three.  The  seats  of  the 
members  of  the  first  class  shall  be  vacated  at  the  expiration  of  the 
second  year;  of  the  second  class  at  the  expiration  of  the  fourth  year;  of 
the  third  class  at  the  expiration  of  the  sixth  year;  so  that  a  third  part 
of  the  members  may  be  chosen  every  second  year. 

SECT.  3.  Every  member  of  the  Senate  shall  be  of  the  age  of  thirty 
years  at  least;  shall  have  been  a  citizen  in  the  United  States  for  at  least 
four  years  before  his  election ;  and  shall  be,  at  the  time  of  his  election, 
a  resident  of  the  state  for  which  he  shall  be  chosen. 

SECT.  4.  The  Senate  shall  choose  its  own  President  and  other 
officers. 

ART.  VI,  SECT.  I.  The  times,  and  places,  and  manner,  of  holding 
the  elections  of  the  members  of  each  House,  shall  be  prescribed  by  the 
legislature  of  each  state;  but  their  provisions  concerning  them  may, 
at  any  time,  be  altered  by  the  legislature  of  the  United  States. 

SECT.  2.  The  legislature  of  the  United  States  shall  have  authority 
to  establish  such  uniform  qualifications  of  the  members  of  each  House, 
with  regard  to  property,  as  to  the  said  legislature  shall  seem  expedient. 

SECT.  3.  In  each  House  a  majority  of  the  members  shall  constitute 
a  quorum  to  do  business;  but  a  smaller  number  may  adjourn  from  day 
to  day. 

SECT.  4.  Each  House  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications,  of  its  own  members. 

SECT.  5.  Freedom  of  speech  and  debate  in  the  legislature  shall  not 
be  impeached  or  questioned  in  any  court  or  place  out  of  the  legisla- 
ture; and  the  members  of  each  House  shall,  in  all  cases,  except  treason, 
felony,  and  breach  of  the  peace,  be  privileged  from  arrest  during  their 
attendance  at  Congress,  and  in  going  to  and  returning  from  it. 
SECT.  6.  Each  House  may  determine  the  rules  of  its  proceedings; 


588  APPENDIX 

APPENDIX     may  punish  its  members  for  disorderly  behaviour;  and  may  expel  a 
XVII         member. 

SECT.  7.  The  House  of  Representatives,  and  the  Senate  when  it 
shall  be  acting  in  a  legislative  capacity,  shall  keep  a  journal  of  their  pro- 
ceedings; and  shall,  from  time  to  time,  publish  them;  and  the  yeas  and 
nays  of  the  members  of  each  House,  on  any  question,  shall,  at  the 
desire  of  one  fifth  part  of  the  members  present,  be  entered  on  the 
Journal. 

SECT.  8.  Neither  House,  without  the  consent  of  the  other,  shall 
adjourn  for  more  than  three  days,  nor  to  any  other  place  than  that  at 
which  the  two  Houses  are  sitting.   But  this  regulation  shall  not  extend 
to  the  Senate  when  it  shall  exercise  the  powers  mentioned  in  the  — 
Article. 

SECT.  9.  The  members  of  each  House  shall  be  ineligible  to,  and  in- 
capable of  holding,  any  office  under  the  authority  of  the  United  States, 
during  the  time  for  which  they  shall  respectively  be  elected;  and  the 
members  of  the  Senate  shall  be  ineligible  to,  and  incapable  of  holding, 
any  such  office  for  one  year  afterwards. 

SECT.  10.  The  members  of  each  House  shall  receive  a  compensa- 
tion for  their  services,  to  be  ascertained  and  paid  by  the  state  in  which 
they  shall  be  chosen. 

SECT.  ii.  The  enacting  style  of  the  laws  of  the  United  States  shall 
be,  "  Be  it  enacted,  and  it  is  hereby  enacted,  by  the  House  of  Repre- 
sentatives, and  by  the  Senate,  of  the  United  States,  in  Congress  as- 
sembled." 

SECT.  12.  Each  House  shall  possess  the  right  of  originating  bills, 
except  in  the  cases  before  mentioned. 

SECT.  13.  Every  bill  which  shall  have  passed  the  House  of  Repre- 
sentatives and  the  Senate,  shall,  before  it  becomes  a  law,  be  presented 
to  the  President  of  the  United  States  for  his  revision.  If,  upon  such 
revision,  he  approve  of  it,  he  shall  signify  his  approbation  by  signing  it. 
But  if,  upon  such  revision,  it  shall  appear  to  him  improper  for  being 
passed  into  a  law,  he  shall  return  it,  together  with  his  objections  against 
it,  to  that  House  in  which  it  shall  have  originated ;  who  shall  enter  the 
objections  at  large  on  their  Journal,  and  proceed  to  reconsider  the  bill. 
But  if,  after  such  reconsideration,  two  thirds  of  that  House  shall, 
notwithstanding  the  objections  of  the  President,  agree  to  pass  it,  it 
shall,  together  with  his  objections,  be  sent  to  the  other  House,  by  which 
it  shall  likewise  be  reconsidered,  and  if  approved  by  two  thirds  of  the 
other  House  also,  it  shall  become  a  law.  But,  in  all  such  cases,  the  votes 
of  both  houses  shall  be  determined  by  yeas  and  nays ;  and  the  names  of 
the  persons  voting  for  or  against  the  bill  shall  be  entered  on  the  Journal 
of  each  House  respectively.  If  any  bill  shall  not  be  returned  by  the 
President  within  seven  days  after  it  shall  have  been  presented  to  him, 
it  shall  be  a  law,  unless  the  legislature,  by  their  adjournment,  prevent 
its  return,  in  which  case  it  shall  not  be  a  law. 

ART.  VII,  SECT.  i.  The  legislature  of  the  United  States  shall  have 
the  power  to  lay  and  collect  taxes,  duties,  imposts,  and  excises; 


APPENDIX  589 

To  regulate  commerce  with  foreign  nations,  and  among  the  several     APPENDIX 
states;  XVII 

To  establish  an  uniform  rule  of  naturalization  throughout  the  United 
States; 

To  coin  money; 

To  regulate  the  value  of  foreign  coins; 

To  fix  the  standard  of  weights  and  measures ; 

To  establish  post-offices; 

To  borrow  money,  and  emit  bills,  on  the  credit  of  the  United  States; 

To  appoint  a  treasurer  by  ballot; 

To  constitute  tribunals  inferior  to  the  supreme  court; 

To  make  rules  concerning  captures  on  land  and  water; 

To  declare  the  law  and  punishment  of  piracies  and  felonies  committed 
on  the  high  seas,  and  the  punishment  of  counterfeiting  the  coin  of  the 
United  States,  and  of  offences  against  the  law  of  nations ; 

To  subdue  a  rebellion  in  any  state,  on  the  application  of  its  legislature; 

To  make  war; 

To  raise  armies; 

To  build  and  equip  fleets; 

To  call  forth  the  aid  of  the  militia,  in  order  to  execute  the  laws  of 
the  Union,  enforce  treaties,  suppress  insurrections,  and  repel  invasions; 

And  to  make  all  laws  that  shall  be  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers,  and  all  other  powers  vested  by 
this  Constitution  in  the  government  of  the  United  States,  or  in  any 
department  or  officer  thereof. 

SECT.  2.  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  the  United  States,  or  any  of  them ;  and  in  adhering 
to  the  enemies  of  the  United  States,  or  any  of  them.  The  legislature 
of  the  United  States  shall  have  power  to  declare  the  punishment  of 
treason.  No  person  shall  be  convicted  of  treason,  unless  on  the  testi- 
mony of  two  witnesses.  No  attainder  of  treason  shall  work  corruption 
of?blood,  nor  forfeiture,  except  during  the  life  of  the  person  attainted. 

SECT.  3.  The  proportions  of  direct  taxation  shall  be  regulated  by 
the  whole  number  of  white  and  other  free  citizens  and  inhabitants  of 
every  age,  sex,  and  condition,  including  those  bound  to  servitude  for 
a  term  of  years,  and  three  fifths  of  all  other  persons  not  comprehended 
in  the  foregoing  description,  (except  Indians  not  paying  taxes;)  which 
number  shall,  within  six  years  after  the  first  meeting  of  the  legislature, 
and  within  the  term  of  every  ten  years  afterwards,  be  taken  in  such 
a  manner  as  the  said  legislature  shall  direct. 

SECT.  4.  No  tax  or  duty  shall  be  laid  by  the  legislature  on  articles 
exported  from  any  state;  nor  on  the  migration  or  importation  of  such 
persons  as  the  several  states  shall  think  proper  to  admit;  nor  shall 
such  migration  or  importation  be  prohibited. 

SECT.  5.  No  capitation  tax  shall  be  laid,  unless  in  proportion  to  the 
census  hereinbefore  directed  to  be  taken. 

SECT.  6.  No  navigation  act  shall  be  passed  without  the  assent  of 
two  thirds  of  the  members  present  in  each  House. 


590  APPENDIX 

APPENDIX         SECT.  7.  The  United  States  shall  not  grant  any  title  of  nobility. 
XVII  ART.  VIII.  The  acts  of  the  legislature  of  the  United  States  made  in 

pursuance  of  this  Constitution,  and  all  treaties  made  under  the  au- 
thority of  the  United  States,  shall  be  the  supreme  law  of  the  several 
states,  and  of  their  citizens  and  inhabitants;  and  the  judges  in  the  several 
states  shall  be  bound  thereby  in  their  decisions,  anything  in  the  con- 
stitutions or  laws  of  the  several  states  to  the  contrary  notwithstanding. 

ART.  IX,  SECT.'  I.  The  Senate  of  the  United  States  shall  have 
power  to  make  treaties,  and  to  appoint  ambassadors,  and  judges  of  the 
supreme  court. 

SECT.  2.  In  all  disputes  and  controversies  now  subsisting,  or  that 
may  hereafter  subsist,  between  two  or  more  states,  respecting  juris- 
diction or  territory,  the  Senate  shall  possess  the  following  powers:  — 
Whenever  the  legislature,  or  the  executive  authority,  or  lawful  agent 
of  any  state,  in  controversy  with  another,  shall,  by  memorial  to  the 
Senate,  state  the  matter  in  question,  and  apply  for  a  hearing,  notice 
of  such  memorial  and  application  shall  be  given,  by  order  of  the  Senate, 
to  the  legislature,  or  the  executive  authority,  of  the  other  state  in 
controversy.  The  Senate  shall  also  assign  a  day  for  the  appearance  of 
the  parties,  by  their  agents,  before  that  House.  The  agents  shall  be 
directed  to  appoint,  by  joint  consent,  commissioners  or  judges  to  con- 
stitute a  court  for  hearing  and  determining  the  matter  in  question. 
But  if  the  agents  cannot  agree,  the  Senate  shall  name  three  persons 
out  of  each  of  the  several  states;  and  from  the  list  of  such  persons,  each 
party  shall  alternately  strike  out  one,  until  the  number  shall  be  re- 
duced to  thirteen;  and  from  that  number  not  less  than  seven,  nor  more 
than  nine,  names,  as  the  Senate  shall  direct,  shall,  in  their  presence,  be 
drawn  out  by  lot;  and  the  persons  whose  names  shall  be  so  drawn,  or 
any  five  of  them,  shall  be  commissioners  or  judges  to  hear  and  finally 
determine  the  controversy;  provided  a  majority  of  the  judges  who  shall 
hear  the  cause  agree  in  the  determination.  If  either  party  shall  neglect 
to  attend  at  the  day  assigned,  without  showing  sufficient  reasons  for 
not  attending,  or  being  present  shall  refuse  to  strike,  the  Senate  shall 
proceed  to  nominate  three  persons  out  of  each  state,  and  the  clerk 
of  the  Senate  shall  strike  in  behalf  of  the  party  absent  or  refusing.  If 
any  of  the  parties  shall  refuse  to  submit  to  the  authority  of  such  court, 
or  shall  not  appear  to  prosecute  or  defend  their  claim  or  cause,  the  court 
shall  nevertheless  proceed  to  pronounce  judgment.  The  judgment 
shall  be  final  and  conclusive.  The  proceedings  shall  be  transmitted  to 
the  President  of  the  Senate,  and  shall  be  lodged  among  the  public  re- 
cords, for  the  security  of  the  parties  concerned.  Every  commissioner 
shall,  before  he  sit  in  judgment,  take  an  oath,  to  be  administered  by 
one  of  the  judges  of  the  supreme  or  superior  court  of  the  state  where  the 
cause  shall  be  tried,  "well  and  truly  to  hear  and  determine  the  matter 
in  question,  according  to  the  best  of  his  judgment,  without  favour, 
affection,  or  hope  of  reward." 

SECT.  3.  All  controversies  concerning  lands  claimed  under  different 
grants  of  two  or  more  states,  whose  jurisdictions,  as  they  respect  such 


APPENDIX  591 

lands,  shall  have  been  decided  or  adjusted  subsequently  to  such  grants,      APPENDIX 
or  any  of  them,  shall,  on  application  to  the  Senate,  be  finally  deter-         XVII 
mined,  as  near  as  may  be,  in  the  same  manner  as  is  before  prescribed 
for  deciding  controversies  between  different  states. 

ART.  X,  SECT.  I.  The  executive  power  of  the  United  States  shall 
be  vested  in  a  single  person.  His  style  shall  be,  "The  President  of  the 
United  States  of  America,"  and  his  title  shall  be,  "His  Excellency." 
He  shall  be  elected  by  ballot  by  the  legislature.  He  shall  hold  his  office 
during  the  term  of  seven  years;  but  shall  not  be  elected  a  second  time. 

SECT.  2.  He  shall,  from  time  to  time,  give  information  to  the 
legislature  of  the  state  of  the  Union.  He  may  recommend  to  their 
consideration  such  measures  as  he  shall  judge  necessary  and  expedient. 
He  may  convene  them  on  extraordinary  occasions.  In  case  of  disagree- 
ment between  the  two  Houses,  with  regard  to  the  time  of  adjournment, 
he  may  adjourn  them  to  such  time  as  he  thinks  proper.  He  shall  take 
care  that  the  laws  of  the  United  States  be  duly  and  faithfully  executed. 
He  shall  commission  all  the  officers  of  the  United  States ;  and  shall  ap- 
point officers  inall  cases  not  otherwise  provided  for  by  this  Constitution. 
He  shall  receive  ambassadors,  and  may  correspond  with  the  supreme 
executives  of  the  several  states.  He  shall  have  power  to  grant  reprieves 
and  pardons,  but  his  pardon  shall  not  be  pleadable  in  bar  of  an  im- 
peachment. He  shall  be  commander-in-chief  of  the  army  and  navy 
of  the  United  States,  and  of  the  militia  of  the  several  states.  He  shall, 
at  stated  times,  receive  for  his  services  a  compensation,  which  shall 
neither  be  increased  nor  diminished  during  his  continuance  in  office. 
Before  he  shall  enter  on  the  duties  of  his  department,  he  shall  take  the 

following  oath  or  affirmation,  "I  solemnly  swear  (or  affirm) 

that  I  will  faithfully  execute  the  office  of  President  of  the  United  States 
of  America."  He  shall  be  removed  from  his  office  on  impeachment 
by  the  House  of  Representatives,  and  conviction,  in  the  supreme  court, 
of  treason,  bribery,  or  corruption.  In  case  of  his  removal,  as  aforesaid, 
death,  resignation,  or  disability  to  discharge  the  powers  and  duties  of 
his  office,  the  President  of  the  Senate  shall  exercise  those  powers  and 
duties  until  another  President  of  the  United  States  be  chosen,  or  until 
the  disability  of  the  President  be  removed. 

ART.  XI,  SECT.  I.  The  judicial  power  of  the  United  States  shall 
be  vested  in  one  supreme  court,  and  in  such  inferior  courts  as  shall, 
when  necessary,  from  time  to  time,  be  constituted  by  the  legislature 
of  the  United  States. 

SECT.  2.  The  judges  of  the  supreme  court,  and  of  the  inferior  courts, 
shall  hold  their  offices  during  good  behaviour.  They  shall,  at  stated 
times,  receive  for  their  services  a  compensation,  which  shall  not  be 
diminished  during  their  continuance  in  office. 

SECT.  3.  The  jurisdiction  of  the  supreme  court  shall  extend  to  all 
cases  arising  under  laws  passed  by  the  legislature  of  the  United  States; 
to  all  cases  affecting  ambassadors,  other  public  ministers,  and  consuls; 
to  the  trial  of  impeachments  of  officers  of  the  United  States;  to  all  cases 
of  admiralty  and  maritime  jurisdiction;  to  controversies  between  two 


592  APPENDIX 

APPENDIX  or  more  states,  (except  such  as  shall  regard  territory  or  jurisdiction;) 
XVII  between  a  state  and  citizens  of  another  state;  between  citizens  of  dif- 
ferent states;  and  between  a  state  or  the  citizens  thereof,  and  foreign 
states,  citizens  or  subjects.  In  cases  of  impeachment,  cases  affecting 
ambassadors,  other  public  ministers  and  consuls,  and  those  in  which 
a  state  shall  be  party,  this  jurisdiction  shall  be  original.  In  all  the  other 
cases  before  mentioned,  it  shall  be  appellate,  with  such  exceptions,  and 
under  such  regulations,  as  the  legislature  shall  make.  The  legislature 
may  assign  any  part  of  the  jurisdiction  above  mentioned,  (except  the 
trial  of  the  President  of  the  United  States,)  in  the  manner  and  under 
the  limitations  which  it  shall  think  proper,  to  such  inferior  courts  as  it 
shall  constitute  from  time  to  time. 

SECT.  4.  The  trial  of  all  criminal  offences  (except  in  cases  of  impeach- 
ment) shall  be  in  the  state  where  they  shall  be  committed;  and  shall 
be  by  jury. 

SECT.  5.  Judgment,  in  cases  of  impeachment,  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to  hold  and 
enjoy  any  office  of  honour,  trust,  or  profit,  under  the  United  States. 
But  the  party  convicted  shall  nevertheless  be  liable  and  subject  to 
indictment,  trial,  judgment,  and  punishment,  according  to  law. 

ART.  XII.  No  state  shall  coin  money;  nor  grant  letters  of  marque 
and  reprisal;  nor  enter  into  any  treaty,  alliance,  or  confederation;  nor 
grant  any  title  of  nobility. 

ART.  XIII.  No  state,  without  the  consent  of  the  legislature  of  the 
United  States,  shall  emit  bills  of  credit,  or  make  anything  but  specie 
a  tender  in  payment  of  debts;  nor  lay  imposts  or  duties  on  imports; 
nor  keep  troops  or  ships  of  war  in  time  of  peace;  nor  enter  into  any 
agreement  or  compact  with  another  state,  or  with  any  foreign  power; 
nor  engage  in  any  war,  unless  it  shall  be  actually  invaded  by  enemies, 
or  the  danger  of  invasion  be  so  imminent  as  not  to  admit  of  a  delay 
until  the  legislature  of  the  United  States  can  be  consulted. 

ART.  XIV.  The  citizens  of  each  state  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  states. 

ART.  XV.  Any  person  charged  with  treason,  felony,  or  high  mis- 
demeanor in  any  state,  who  shall  flee  from  justice,  and  shall  be  found 
in  any  other  state,  shall,  on  demand  of  the  executive  power  of  the  state 
from  which  he  fled,  be  delivered  up  and  removed  to  the  state  having 
jurisdiction  of  the  offence. 

ART.  XVI.  Full  faith  shall  be  given  in  each  state  to  the  acts  of  the 
legislatures,  and  to  the  records  and  judicial  proceedings  of  the  courts 
and  magistrates  of  every  other  state. 

ART.  XVII.  New  states  lawfully  constituted  or  established  within 
the  limits  of  the  United  States  may  be  admitted,  by  the  legislature, 
into  this  government;  but  to  such  admission  the  consent  of  two  thirds 
of  the  members  present  in  each  House  shall  be  necessary.  If  a  new  state 
shall  arise  within  the  limits  of  any  of  the  present  states,  the  consent 
of  the  legislatures  of  such  states  shall  be  also  necessary  to  its  admission. 
If  the  admission  be  consented  to,  the  new  states  shall  be  admitted  on 


APPENDIX  593 

the  same  terms  with  the  original  states.  But  the  legislature  may  make     APPENDIX 
conditions  with  the  new  states  concerning  the  public  debt  which  shall         XVII 
be  then  subsisting. 

ART.  XVIII.  The  United  States  shall  guaranty  to  each  state  a  re- 
publican form  of  government;  and  shall  protect  each  state  against  for- 
eign invasions,  and,  on  the  application  of  its  legislature,  against  do- 
mestic violence. 

ART.  XIX.  On  the  application  of  the  legislatures  of  two  thirds  of 
the  states  in  the  Union,  for  an  amendment  of  this  Constitution,  the 
legislature  of  the  United  States  shall  call  a  convention  for  that  purpose. 

ART.  XX.  The  members  of  the  legislatures,  and  the  executive  and 
judicial  officers  of  the  United  States,  and  of  the  several  states,  shall  be 
bound  by  oath  to  support  this  Constitution. 

ART.  XXI.  The  ratification  of  the  conventions  of  states 

shall  be  sufficient  for  organizing  this  Constitution. 

ART.  XXII.  This  Constitution  shall  be  laid  before  the  United  States 
in  Congress  assembled,  for  their  approbation;  and  it  is  the  opinion  of 
this  Convention,  that  it  should  be  afterwards  submitted  to  a  conven- 
tion chosen  in  each  state,  under  the  recommendation  of  its  legislature, 
in  order  to  receive  the  ratification  of  such  convention. 

ART.  XXIII.  To  introduce  this  government,  it  is  the  opinion  of 
this  Convention,  that  each  assenting  convention  should  notify  its  as- 
sent and  ratification  to  the  United  States  in  Congress  assembled ;  that 
Congress,  after  receiving  the  assent  and  ratification  of  the  conventions 

of states,  should  appoint  and  publish  a  day,  as  early  as  may  be, 

and  appoint  a  place,  for  commencing  proceedings  under  this  Consti- 
tution; that,  after  such  publication,  the  legislatures  of  the  several 
states  should  elect  members  of  the  Senate  and  direct  the  election  of 
members  of  the  House  of  Representatives;  and  that  the  members 
of  the  legislature  should  meet  at  the  time  and  place  assigned  by  Con- 
gress, and  should,  as  soon  as  may  be  after  their  meeting,  choose  the 
President  of  the  United  States,  and  proceed  to  execute  this  Constitu- 
tion. 


XVIII 

THE  CONSTITUTION  AS  REPORTED  BY  THE  COM- 
MITTEE  ON  STYLE  ON  SEPTEMBER  12 

APPENDIX  WE,  the  people  of  the  United  States,  in  order  to  form  a  more  perfect 
XVIII  union,  to  establish  justice,  insure  domestic  tranquillity,  provide  for 
the  common  defence,  promote  the  general  welfare,  and  secure  the 
blessings  of  liberty  to  ourselves  and  our  posterity,  do  ordain  and  es- 
tablish this  Constitution  for  the  United  States  of  America. 

ART.  I,  SECT.  i.  All  legislative  powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist  of  a 
Senate  and  House  of  Representatives. 

SECT.  2.  The  House  of  Representatives  shall  be  composed  of  mem- 
bers chosen  every  second  year  by  the  people  of  the  several  states,  and 
the  electors  in  each  state  shall  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  state  legislature. 

No  person  shall  be  a  representative  who  shall  not  have  attained  to 
the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of 
that  state  in  which  he  shall  be  chosen. 

Representatives  and  direct  taxes  shall  be  apportioned  among  the 
several  states  which  may  be  included  within  this  Union,  according  to 
their  respective  numbers,  which  shall  be  determined  by  adding  to  the 
whole  number  of  free  persons,  including  those  bound  to  servitude 
for  a  term  of  years,  and  excluding  Indians  not  taxed,  three  fifths  of 
all  other  persons.  The  actual  enumeration  shall  be  made  within  three 
years  after  the  first  meeting  of  the  Congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such  manner  as  they  shall 
by  law  direct.  The  number  of  representatives  shall  not  exceed  one  for 
every  forty  thousand,  but  each  state  shall  have  at  least  one  represent- 
ative; and  until  such  enumeration  shall  be  made,  the  state  of  New 
Hampshire  shall  be  entitled  to  choose  three,  Massachusetts  eight, 
Rhode  Island  and  Providence  Plantations  one,  Connecticut  five,  New 
York  six,  New  Jersey  four,  Pennsylvania  eight,  Delaware  one,  Mary- 
land six,  Virginia  ten,  North  Carolina  five,  South  Carolina  five,  and 
Georgia  three. 

When  vacancies  happen  in  the  representation  from  any  state,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such  va- 
cancies. 

The  House  of  Representatives  shall  choose  their  Speaker  and  other 
officers;  and  they  shall  have  the  sole  power  of  impeachment. 

SECT.  3.  The  Senate  of  the  United  States  shall  be  composed  of 


APPENDIX  595 

two  senators  from  each  state,  chosen  by  the  legislature  thereof,  for     APPENDIX 
six  years;  and  each  senator  shall  have  one  vote.  XVIII 

Immediately  after  they  shall  be  assembled  in  consequence  of  the 
first  election,  they  shall  be  divided,  as  equally  as  may  be,  into  three 
classes.  The  seats  of  the  senators  of  the  first  class  shall  be  vacated  at 
the  expiration  of  the  second  year ;  of  the  second  class  at  the  expiration 
of  the  fourth  year;  and  of  the  third  class  at  the  expiration  of  the  sixth 
year ;  so  that  one  third  may  be  chosen  every  second  year.  And  if  va- 
cancies happen  by  resignation,  or  otherwise,  during  the  recess  of  the 
legislature  of  any  state,  the  executive  thereof  may  make  temporary 
appointments  until  the  next  meeting  of  the  legislature. 

No  person  shall  be  a  senator  who  shall  not  have  attained  to  the  age 
of  thirty  years,  and  been  nine  years  a  citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  inhabitant  of  that  state  for  which 
he  shall  be  chosen. 

The  Vice-President  of  the  United  States  shall  be,  ex  officio.  President 
of  the  Senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

The  Senate  shall  choose  their  other  officers,  and  also  a  President 
pro  tempore,  in  the  absence  of  the  Vice-President,  or  when  he  shall 
exercise  the  office  of  the  President  of  the  United  States. 

The  Senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath.  When  the  Pre- 
sident of  the  United  States  is  tried,  the  Chief  Justice  shall  preside; 
and  no  person  shall  be  convicted  without  the  concurrence  of  two  thirds 
of  the  members  present. 

Judgment,  in  cases  of  impeachment,  shall  not  extend  further  than  to 
removal  from  office,  and  disqualification  to  hold  and  enjoy  any  office 
of  honour,  trust,  or  profit,  under  the  United  States;  but  the  party 
convicted  shall  nevertheless  be  liable  and  subject  to  indictment,  trial, 
judgment,  and  punishment,  according  to  law. 

SECT.  4.  The  times,  places,  and  manner,  of  holding  elections  for 
senators  and  representatives,  shall  be  prescribed  in  each  state  by  the 
legislature  thereof;  but  the  Congress  may  at  any  time  by  law  make  or 
alter  such  regulations. 

The  Congress  shall  assemble  at  least  once  in  every  year;  and  such 
meeting  shall  be  on  the  first  Monday  in  December,  unless  they  shall 
by  law  appoint  a  different  day. 

SECT.  5.  Each  house  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications,  of  its  own  members;  and  a  majority  of  each  shall 
constitute  a  quorum  to  do  business;  but  a  smaller  number  may  adjourn 
from  day  to  day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner  and  under  such  penalties  as  each  house 
may  provide. 

Each  house  may  determine  the  rules  of  its  proceedings;  punish  its 
members  for  disorderly  behaviour;  and,  with  the  concurrence  of  two 
thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from  time  to 
time  publish  the  same,  excepting  such  parts  as  may,  in  their  judgment, 


596  APPENDIX 

APPENDIX  require  secrecy;  and  the  yeas  and  nays  of  the  members  of  either  house 
XVIII  on  any  question  shall,  at  the  desire  of  one  fifth  of  those  present,  be 
entered  on  the  Journal. 

Neither  house,  during  the  session  of  Congress,  shall,  without  con- 
sent of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other 
place  than  that  in  which  the  two  houses  shall  be  sitting. 

SECT.  6.  The  senators  and  representatives  shall  receive  a  compen- 
sation for  their  services,  to  be  ascertained  by  law,  and  paid  out  of  the 
treasury  of  the  United  States.  They  shall  in  all  cases,  except  treason, 
felony,  and  breach  of  the  peace,  be  privileged  from  arrest  during  their 
attendance  at  the  session  of  their  respective  houses,  and  in  going  to 
and  returning  from  the  same;  and  for  any  speech  or  debate  in  either 
house,  they  shall  not  be  questioned  in  any  other  place. 

No  senator  or  representative  shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  office,  under  the  authority  of  the 
United  States,  which  shall  have  been  created,  or  the  emoluments 
whereof  shall  have  been  increased,  during  such  time;  and  no  person 
holding  any  office  under  the  United  States  shall  be  a  member  of  either 
house  during  his  continuance  in  office. 

SECT.  7.  The  enacting  style  of  the  laws  shall  be,  "Be  it  enacted  by 
the  Senators  and  Representatives,  in  Congress  assembled." 

All  bills  for  raising  revenue  shall  originate  in  the  House  of  Repre- 
sentatives; but  the  Senate  may  propose  or  concur  with  amendments, 
as  on  other  bills. 

Every  bill  which  shall  have  passed  the  House  of  Representatives 
and  the  Senate,  shall,  before  it  become  a  law,  be  presented  to  the 
President  of  the  United  States.  If  he  approve,  he  shall  sign  it;  but  if 
not,  he  shall  return  it,  with  his  objections,  to  that  house  in  which  it 
shall  have  originated,  who  shall  enter  the  objections  at  large  on  their 
Journal,  and  proceed  to  reconsider  it.  If,  after  such  reconsideration, 
two  thirds  of  that  house  shall  agree  to  pass  the  bill,  it  shall  be  sent,  to- 
gether with  the  objections,  to  the  other  house,  by  which  it  shall  like- 
wise be  reconsidered ;  and  if  approved  by  two  thirds  of  that  house,  it 
shall  become  a  law.  But  in  all  such  cases,  the  votes  of  both  houses 
shall  be  decided  by  yeas  and  nays ;  and  the  names  of  the  persons  voting 
for  and  against  the  bill  shall  be  entered  on  the  Journal  of  each  house 
respectively.  If  any  bill  shall  not  be  returned  by  the  President  within 
ten  days  (Sundays  excepted)  after  it  shall  have  been  presented  to  him, 
the  same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the 
Congress,  by  its  adjournment,  prevent  its  return;  in  which  case  it 
shall  not  be  a  law. 

Every  order,  resolution,  or  vote,  to  which  the  concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary,  (except  on 
the  question  of  adjournment,)  shall  be  presented  to  the  President  of  the 
United  States,  and,  before  the  same  shall  take  effect,  shall  be  approved 
by  him,  or,  being  disapproved  by  him,  shall  be  repassed  by  three  fourths 
of  the  Senate  and  House  of  Representatives,  according  to  the  rules  and 
limitations  prescribed  in  the  case  of  a  bill. 


APPENDIX  597 

SECT.  8.  The  Congress  may,  by  joint  ballot,  appoint  a  treasurer.         APPENDIX 

They  shall  have  power  to  lay  and  collect  taxes,  duties,  imposts,  and        XVIII 
excises; 

To  pay  the  debts,  and  provide  for  the  common  defence  and  general 
welfare,  of  the  United  States; 

To  borrow  money  on  the  credit  of  the  United  States; 

To  regulate  commerce  with  foreign  nations,  among  the  several  states, 
and  with  the  Indian  tribes; 

To  establish  a  uniform  rule  of  naturalization,  and  uniform  laws  on  the 
subject  of  bankruptcies,  throughout  the  United  States; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  and 
fix  the  standard  of  weights  and  measures; 

To  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States; 

To  establish  post-offices  and  post-roads; 

To  promote  the  progress  of  science  and  useful  arts,  by  securing,  for 
limited  times,  to  authors  and  inventors,  the  exclusive  right  to  their  re- 
spective writings  and  discoveries ; 

To  constitute  tribunals  inferior  to  the  Supreme  Court ; 

To  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  law  of  nations; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  and  water; 

To  raise  and  support  armies,  —  but  no  appropriation  of  money  to  that 
use  shall  be  for  a  longer  term  than  two  years; 

To  provide  and  maintain  a  navy ; 

To  make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces; 

To  provide  for  the  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions; 

To  provide  for  organizing,  arming,  and  disciplining  the  militia,  and 
for  governing  such  part  of  them  as  may  be  employed  in  the  [service  of 
the]  United  States  —  reserving  to  the  states,  respectively,  the  appoint- 
ment of  the  officers,  and  the  authority  of  training  the  militia,  according 
to  the  discipline  prescribed  by  Congress; 

To  exercise  exclusive  legislation,  in  all  cases  whatsoever,  over  such 
district  (not  exceeding  ten  miles  square)  as  may,  by  cession  of  particular 
states,  and  the  acceptance  of  Congress,  become  the  seat  of  government 
of  the  United  States;  and  to  exercise  like  authority  over  all  places  pur- 
chased by  the  consent  of  the  legislature  of  the  state  in  which  the  same 
shall  be,  for  the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and 
other  needful  buildings;  and, 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or  in  any  depart- 
ment or  officer  thereof. 

SECT.  9.  The  migration  or  importation  of  such  persons  as  the  several 
states,  now  existing,  shall  think  proper  to  admit,  shall  not  be  prohibited 


598  APPENDIX 

APPENDIX     by  the  Congress  prior  to  the  year  one  thousand  eight  hundred  and  eight ; 
XVIII         but  a  tax  or  duty  may  be  imposed  on  such  importation,  not  exceeding 
ten  dollars  for  each  person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  un- 
less when,  in  cases  of  rebellion  or  invasion,  the  public  safety  may  re- 
quire it. 

No  bill  of  attainder  shall  be  passed,  or  any  ex  post  facto  law. 

No  capitation  tax  shall  be  laid,  unless  in  proportion  to  the  census 
hereinbefore  directed  to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  state. 

No  money  shall  be  drawn  from  the  treasury,  but  in  consequence  of 
appropriations  made  by  law. 

No  title  of  nobility  shall  be  granted  by  the  United  States. 

And  no  person  holding  any  office  of  profit  or  trust  under  them,  shall, 
without  the  consent  of  Congress,  accept  of  any  present,  emolument, 
office,  or  title,  of  any  kind  whatever,  from  any  king,  prince,  or  foreign 
state. 

SECT.  10.  No  state  shall  coin  money,  nor  emit  bills  of  credit,  nor 
make  anything  but  gold  and  silver  coin  a  tender  in  payment  of  debts, 
nor  pass  any  bill  of  attainder,  nor  ex  post  facto  laws,  nor  laws  altering  or 
impairing  the  obligation  of  contracts;  nor  grant  letters  of  marque  and 
reprisal ;  nor  enter  into  any  treaty,  alliance,  or  confederation ;  nor  grant 
any  title  of  nobility. 

No  state  shall,  without  the  consent  of  Congress,  lay  imposts  or  duties 
on  imports  or  exports,  nor  with  such  consent,  but  to  the  use  of  the 
treasury  of  the  United  States;  nor  keep  troops  or  ships  of  war  in  time  of 
peace ;  nor  enter  into  any  agreement  or  compact  with  another  state,  nor 
with  any  foreign  power;  nor  engage  in  any  war,  unless  it  shall  be  actu- 
ally invaded  by  enemies,  or  the  danger  of  invasion  be  so  imminent  as 
not  to  admit  of  delay  until  the  Congress  can  be  consulted. 

ART.  II,  SECT.  I.  The  executive  power  shall  be  vested  in  a  Pre- 
sident of  the  United  States  of  America.  He  shall  hold  his  office  during 
the  term  of  four  years,  and,  together  with  the  Vice-President,  chosen 
for  the  same  term,  be  elected  in  the  following  manner:  — 

Each  state  shall  appoint,  in  such  manner  as  the  legislature  thereof 
may  direct,  a  number  of  electors  equal  to  the  whole  number  of  senators 
and  representatives  to  which  the  state  may  be  entitled  in  Congress; 
but  no  senator  or  representative  shall  be  appointed  an  elector,  nor  any 
person  holding  an  office  of  trust  or  profit  under  the  United  States. 

The  electors  shall  meet  in  their  respective  states,  and  vote  by  ballot 
for  two  persons,  of  whom  one,  at  least,  shall  not  be  an  inhabitant  of  the 
same  state  with  themselves.  And  they  shall  make  a  list  of  all  the  per- 
sons voted  for,  and  of  the  number  of  votes  for  each ;  which  list  they  shall 
sign  and  certify,  and  transmit  sealed  to  the  seat  of  the  general  govern- 
ment, directed  to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates;  and  the  votes  shall  then  be  counted.  The  per- 
son having  the  greatest  number  of  votes  shall  be  the  President,  if  such 


APPENDIX  599 

number  be  a  majority  of  the  whole  number  of  electors  appointed ;  and  APPENDIX 
if  there  be  more  than  one  who  have  such  majority,  and  have  an  equal  XVIII 
number  of  votes,  then  the  House  of  Representatives  shall  immediately 
choose  by  ballot  one  of  them  for  President;  and  if  no  person  have  a 
majority,  then  from  the  five  highest  on  the  list  the  said  House  shall,  in 
like  manner,  choose  the  President.  But  in  choosing  the  President,  the 
votes  shall  be  taken  by  states,  and  not  per  capita,  the  representation 
from  each  state  having  one  vote.  A  quorum  for  this  purpose  shall  con- 
sist of  a  member  or  members  from  two  thirds  of  the  states ;  and  a  ma- 
jority of  all  the  states  shall  be  necessary  to  a  choice.  In  every  case,  after 
the  choice  of  the  President  by  the  representatives,  the  person  having  the 
greatest  number  of  votes  of  the  electors  shall  be  the  Vice-President. 
But  if  there  should  remain  two  or  more  who  have  equal  votes,  the  Sen- 
ate shall  choose  from  them,  by  ballot,  the  Vice-President. 

The  Congress  may  determine  the  time  of  choosing  the  electors,  and 
the  time  in  which  they  shall  give  their  votes ;  but  the  election  shall  be 
on  the  same  day  throughout  the  United  States. 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the  United 
States  at  the  time  of  the  adoption  of  this  Constitution,  shall  be  eligible 
to  the  office  of  President;  neither  shall  any  person  be  eligible  to  that 
office  who  shall  not  have  attained  to  the  age  of  thirty-five  years,  and 
been  fourteen  years  a  resident  within  the  United  States. 

In  case  of  the  removal  of  the  President  from  office,  or  of  his  death, 
resignation,  or  inability  to  discharge  the  powers  and  duties  of  the  said 
office,  the  same  shall  devolve  on  the  Vice-President;  and  the  Congress 
may  by  law  provide  for  the  case  of  removal,  death,  resignation,  or  in- 
ability, both  of  the  President  and  Vice-President,  declaring  what  officer 
shall  then  act  as  President ;  and  such  officer  shall  act  accordingly,  until 
the  disability  be  removed,  or  the  period  for  choosing  another  President 
arrive. 

The  President  shall,  at  stated  times,  receive  a  fixed  compensation  for 
his  services,  which  shall  neither  be  increased  nor  diminished  during  the 
period  for  which  he  shall  have  been  elected. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the  fol- 
lowing oath  or  affirmation:  "  I  do  solemnly  swear  (or  affirm)  that  I  will 
faithfully  execute  the  office  of  President  of  the  United  States,  and  will, 
to  the  best  of  my  judgment  and  power,  preserve,  protect,  and  defend  the 
Constitution  of  the  United  States." 

SECT.  2.  The  President  shall  be  commander-in-chief  of  the  army  and 
navy  of  the  United  States,  and  of  the  militia  of  the  several  states,  when 
called  into  the  actual  service  of  the  United  States. 

He  may  require  the  opinion,  in  writing,  of  the  principal  officer  in  each 
of  the  executive  departments,  upon  any  subject  relating  to  the  duties 
of  their  respective  offices.  And  he  shall  have  power  to  grant  reprieves 
and  pardons  for  offences  against  the  United  States,  except  in  cases  of 
impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the  Sen- 
ate, to  make  treaties,  provided  two  thirds  of  the  senators  present  con- 


6oo  APPENDIX 

APPENDIX     cur;  and  he  shall  nominate,  and  by  and  with  the  advice  and  consent  of 

XVIII         the  Senate,  shall  appoint,  ambassadors,  other  public  ministers,  and 

consuls,  judges  of  the  Supreme  Court,  and  all  other  officers  of  the 

United  States,  whose  appointments  are  not  herein  otherwise  provided 

for. 

The  President  shall  have  power  to  fill  up  all  vacancies  that  may 
happen  during  the  recess  of  the  Senate,  by  granting  commissions, 
which  shall  expire  at  the  end  of  the  next  session. 

SECT.  3.  He  shall,  from  time  to  time,  give  to  the  Congress  informa- 
tion of  the  state  of  the  Union,  and  recommend  to  their  consideration  such 
measures  as  he  shall  judge  necessary  and  expedient.  He  may,  on  extra- 
ordinary occasions,  convene  both  houses,  or  either  of  them ;  and  in  case 
of  disagreement  between  them  with  respect  to  the  time  of  adjournment, 
he  may  adjourn  them  to  such  time  as  he  shall  think  proper.  He  shall 
receive  ambassadors  and  other  public  ministers.  He  shall  take  care  that 
the  laws  be  faithfully  executed ;  and  shall  commission  all  the  officers  of 
the  United  States. 

SECT.  4.  The  President,  Vice-President,  and  all  civil  officers  of  the 
United  States,  shall  be  removed  from  office  on  impeachment  for,  and 
conviction  of,  treason,  bribery,  or  other  high  crimes  and  misdemeanors. 

ART.  Ill,  SECT.  i.  The  judicial  power  of  the  United  States,  both  in 
law  and  equity,  shall  be  vested  in  one  Supreme  Court,  and  in  such 
inferior  courts  as  the  Congress  may,  from  time  to  time,  ordain  and 
establish.  The  judges,  both  of  the  Supreme  and  inferior  courts,  shall 
hold  their  offices  during  good  behaviour,  and  shall,  at  stated  times, 
receive  for  their  services  a  compensation,  which  shall  not  be  diminished 
during  their  continuance  in  office. 

SECT.  2.  The  judicial  power  shall  extend  to  all  cases,  both  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority;  to  all 
cases  affecting  ambassadors,  other  public  ministers,  and  consuls;  to  all 
cases  of  admiralty  and  maritime  jurisdiction;  to  controversies  to  which 
the  United  States  shall  be  a  party;  to  controversies  between  two  or 
more  states;  between  a  state  and  citizens  of  another  state;  between 
citizens  of  different  states ;  between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states;  or  between  a  state,  or  the  citizens 
thereof,  and  foreign  states,  citizens,  or  subjects. 

In  cases  affecting  ambassadors,  other  public  ministers,  and  consuls, 
and  in  those  in  which  a  state  shall  be  a  party,  the  Supreme  Court  shall 
have  original  jurisdiction.  In  all  other  cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  jurisdiction,  both  as  to  law  and 
fact,  —  with  such  exceptions,  and  under  such  regulations,  as  the  Con- 
gress shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury ;  and  such  trial  shall  be  held  in  the  state  where  the  said  crime  shall 
have  been  committed;  but  when  not  committed  within  any  state,  the 
trial  shall  be  at  such  place  or  places  as  the  Congress  may  by  law  have 
directed. 


APPENDIX  60 1 

SECT.  3.  Treason  against  the  United  States  shall  consist  only  in     APPENDIX 
levying  war  against  them,  or  in  adhering  to  their  enemies,  giving  them        XVIII 
aid  and  comfort.  No  person  shall  be  convicted  of  treason,  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on  confession  in 
open  court. 

The  Congress  shall  have  power  to  declare  the  punishment  of  treason ; 
but  no  attainder  of  treason  shall  work  corruption  of  blood,  nor  forfeiture, 
except  during  the  life  of  the  person  attainted. 

ART.  IV,  SECT.  I .  Full  faith  and  credit  shall  be  given,  in  each  state, 
to  the  public  acts,  records,  and  judicial  proceedings,  of  every  other  state. 
And  the  Congress  may,  by  general  laws,  prescribe  the  manner  in  which 
such  acts,  records,  and  proceedings,  shall  be  proved,  and  the  effect 
thereof. 

SECT.  2.  The  citizens  of  each  state  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  states. 

A  person  charged  in  any  state  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another  state,  shall,  on  de- 
mand of  the  executive  authority  of  the  state  from  which  he  fled,  be 
delivered  up,  and  removed  to  the  state  having  jurisdiction  of  the  crime. 

No  person  legally  held  to  service  or  labour  in  one  state,  escaping  into 
another,  shall,  in  consequence  of  regulations  subsisting  therein,  be  dis- 
charged from  such  service  or  labour,  but  shall  be  delivered  up,  on  claim 
of  the  party  to  whom  such  service  or  labour  may  be  due. 

SECT.  3.  New  states  may  be  admitted  by  the  Congress  into  this 
Union;  but  no  new  state  shall  be  formed  or  erected  within  the  jurisdic- 
diction  of  any  other  state;  nor  any  state  be  formed  by  the  junction  of 
two  or  more  states,  or  parts  of  states,  without  the  consent  of  the  legis- 
latures of  the  states  concerned,  as  well  as  of  the  Congress. 

The  Congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property  belong- 
ing to  the  United  States;  and  nothing  in  this  Constitution  shall  be  so 
construed  as  to  prejudice  any  claim  of  the  United  States,  or  of  any 
particular  state. 

SECT.  4.  The  United  States  shall  guaranty  to  every  state  in  this 
Union  a  republican  form  of  government,  and  shall  protect  each  of  them 
against  invasion,  and,  on  application  of  the  legislature  or  executive, 
against  domestic  violence. 

ART.  V.  The  Congress,  whenever  two  thirds  of  both  houses  shall 
deem  necessary,  or  on  the  application  of  two  thirds  of  the  legislatures 
of  the  several  states,  shall  propose  amendments  to  this  Constitution, 
which  shall  be  valid,  to  all  intents  and  purposes,  as  part  thereof,  when 
the  same  shall  have  been  ratified  by  three  fourths,  at  least,  of  the  legis- 
latures of  the  several  states,  or  by  conventions  in  three  fourths  thereof, 
as  the  one  or  the  other  mode  of  ratification  may  be  proposed  by  the 
Congress;  provided,  that  no  amendment  which  may  be  made  prior  to 

the  year  1808  shall  in  any  manner  affect  the and Sections 

of  Article . 

ART.  VI.  All  debts  contracted,  and  engagements  entered  into,  before 


602  APPENDIX 

APPENDIX  the  adoption  of  this  Constitution,  shall  be  as  valid  against  the  United 
XVIII  States  under  this  Constitution  as  under  the  Confederation. 

This  Constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land ;  and  the  judges  in  every  state  shall  be  bound  thereby, 
anything  in  the  Constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding. 

The  senators  and  representatives  before  mentioned,  and  the  members 
of  the  several  state  legislatures,  and  all  executive  and  judicial  officers, 
both  of  the  United  States  and  of  the  several  states,  shall  be  bound,  by 
oath  or  affirmation,  to  support  this  Constitution;  but  no  religious  test 
shall  ever  be  required  as  a  qualification  to  any  office  of  public  trust  under 
the  United  States. 

ART.  VII.  The  ratification  of  the  conventions  of  nine  states  shall  be 
sufficient  for  the  establishment  of  this  Constitution  between  the  states 
so  ratifying  the  same. 

In  a  "letter"  accompanying  their  Report,  the  Committee  on  Style  say: 
"In  our  deliberations  on  this  subject,  we  kept  steadily  in  our  view  that 
which  appeared  to  us  the  greatest  interest  of  every  true  American,  the  con- 
solidation of  our  union,  in  which  is  involved  our  property,  felicity,  safety, 
perhaps  our  national  existence.  This  important  consideration,  seriously 
and  deeply  impressed  on  our  minds,  led  each  State  in  the  Convention  to  be 
less  rigid  in  points  of  inferior  magnitude,  than  might  have  been  otherwise 
expected.  And  thus  the  Constitution  which  we  now  present  is  the  result  of 
a  spirit  of  amity  and  of  that  mutual  deference  and  concession,  which  the 
peculiarity  of  our  political  situation  rendered  indispensable."  Madison 
Papers,  iii,  1561. 


XIX 

PELATIAH  WEBSTER'S  DEFENCE 

OF  THE  NEW  CONSTITUTION,  PUBLISHED  OCTOBER  12,  1787,  IN 
REPLY  TO  AN  ATTACK  MADE  UPON  IT  BY  SIXTEEN  MEMBERS 
OF  THE  ASSEMBLY  OF  PENNSYLVANIA  IN  AN  ADDRESS  DATED 
SEPTEMBER  29,  1787 

Remarks  on  the  Address  of  Sixteen  Members  of  the  Assembly  of  Pennsylvania 
to  their  constituents,  dated  September  29, 1787.  With  some  strictures  on  their 
objections  to  the  constitution  recommended  by  the  late  Federal  Convention.1 
(First  published  in  Philadelphia,  October  12,  1787.) 

I  AM  now  to  consider  the  objections  of  our  sixteen  members  to  the     APPENDIX 
New  Constitution  itself,  which  is  the  most  important  part  that  lies  on  me. 

I.  Their  first  objection  is,  that  the  government  proposed  will  be  too 
expensive.  I  answer  that  if  the  appointments  of  offices  are  not  more,  and 
the  compensations  or  emoluments  of  office  not  greater,  than  is  necessary, 
the  expense  will  be  by  no  means  burdensome,  and  thus  must  be  left 
to  the  prudence  of  Congress ;  for  I  know  of  no  way  to  control  supreme 
powers  from  extravagance  in  this  respect.  Doubtless  many  instances 
may  be  produced  of  many  needless  offices  being  created,  and  many  in- 
ferior officers,  who  receive  far  greater  emoluments  of  office,  than  the  first 
President  of  the  State. 

1  The  pamphlet  was  first  pub-  cern  anybody  out  of  that  State,  I 

lished   by   Eleazer  Oswald  at  the  have  here  omitted  my  remarks  on 

Coffee  House.   It  was  subsequently  all  of  it,  but  their  objections  to  the 

republished  by  Webster,  in  a  some-  new  constitution  itself,  which  being 

what  abridged  form,  in  his  Essays.  of  general  consequence  to  the  States, 

He  then  appended  this  note:  "When  inasmuch  as  that  constitution  (with 

the  new  constitution  was  laid  before  a  few  amendments  since  adopted) 

the  Assembly  of  Pennsylvania,  in  is  the  same  which  now  exists  in  full 

September,  1787,  a  resolution  passed  establishment  through  the  Union,  I 

the  House  (forty-three  against  nine-  therefore   here  insert,    I  say,  their 

teen)  to  call  a  convention  to  consider  objections  and  my  remarks  on  them, 

it,  etc.    Sixteen  of  the  dissentients  and  leave  out  all  the  rest  as  matter 

published  an  address  to  their  constitu-  of  local  concern  at  that  time,  but  like 

ents,  dated  September  27,  1787,  stat-  to  be  little  interesting  to  the  public 

ing  their  conduct,  and  assigning  the  in  general  at   this  or  any  future 

reasons  of  it;  but  as  there  was  very  time."  It  is  the  revised  version  that 

little  in  all  this  affair  that  reflected  is   reproduced   here.    The   original 

much  honor  on  the  dissenting  members  text  as  published  by  Oswald  may  be 

or  on  the  State  to  which  they  belonged,  found  in  the  Library  of  Congress  and 

and  nothing  that  could  affect  or  con-  in  the  Boston  Athenaeum. 


604  APPENDIX 

APPENDIX  2.  Their  next  objection  is  against  a  legislature  consisting  of  three 
XIX  branches.1  This  is  so  far  from  an  objection,  that  I  consider  it  as  an  ad- 
vantage. The  most  weighty  and  important  affairs  of  the  Union  must 
be  transacted  in  Congress;  the  most  essential  counsels  must  be  there 
decided,  which  must  all  go  thro'  several  discussions  in  three  different 
chambers  (all  equally  competent  to  the  subject  and  equally  governed 
by  the  same  motives  and  interests,  viz.,  the  good  of  the  great  Common- 
wealth, and  the  approbation  of  the  people)  before  any  decision  can  be 
made;  and  when  disputes  are  very  high,  different  discussions  are  neces- 
sary, because  they  afford  time  for  all  parties  to  cool  and  reconsider. 

This  appears  to  me  to  be  a  very  safe  way  and  a  very  likely  method  to 
prevent  any  sudden  and  undigested  resolutions  from  passing;  and  tho' 
it  may  delay  or  even  destroy,  a  good  bill,  will  hardly  admit  the  passing 
of  a  bad  one,  which  is  by  far  the  worst  evil  of  the  two.  But  if  all  this  can- 
not stop  the  course  of  a  bad  bill,  the  negative  of  the  President  will  at 
least  give  it  further  embarrassment,  will  furnish  all  the  new  light  which 
a  most  serious  discussion  in  a  third  House  can  give,  and  will  make  a  new 
discussion  necessary  in  each  of  the  other  two,  where  every  member  will 
have  an  opportunity  to  revise  his  opinion,  to  correct  his  arguments,  and 
bring  his  judgment  to  the  greatest  maturity  possible:  if  all  this  cannot 
keep  the  public  decision  within  the  bounds  of  wisdom,  fitness,  right,  and 
convenience,  it  will  be  hard  to  find  any  efforts  of  human  wisdom  that 
can  do  it. 

I  believe  it  would  be  difficult  to  find  a  man  in  the  Union,  who  would 
not  readily  consent  to  have  Congress  vested  with  all  the  vast  powers 
proposed  by  the  New  Constitution  if  he  could  be  sure  that  those  powers 
would  beexercised  with  wisdom,  justice,  and  propriety,  and  not  be  abused ; 
and  I  do  not  see  that  greater  precautions  and  guards  against  abuses  can 
well  be  devised,  or  more  effectual  methods  used  to  throw  every  degree 
of  light  on  every  subject  of  debate,  or  more  powerful  motives  to  a  reason- 
able and  honest  decision  can  be  set  before  the  minds  of  Congress,  than 
are  here  proposed. 

And  if  this  is  the  best  that  can  be  obtained,  it  ought  in  all  prudence 
to  be  adopted  till  better  appears,  rather  than  to  be  rejected  merely  be- 
cause it  is  human,  not  perfect,  and  may  be  abused.  At  any  rate  I  think 
it  very  plain  that  our  chance  of  a  right  decision  in  a  Congress  of  three 
branches,  is  much  greater  than  in  one  single  chamber;  but  however  all 
this  may  be,  I  cannot  see  the  least  tendency  in  a  Legislature  of  three 
branches  to  increase  the  burdens  or  taxes  of  the  people.  I  think  it  very 
evident  that  any  proposition  of  extravagant  expense  would  be  checked 
and  embarrassed  in  such  an  assembly  more  than  in  a  single  House. 

Farther,  the  two  Houses  being  by  their  election  taken  from  the  body 
of  the  States,  and  being  themselves  principal  inhabitants,  will  naturally 
have  the  interest  of  the  Commonwealth  sincerely  at  heart,  their  princi- 
ple must  be  the  same,  their  differences  must  (if  any)  in  the  mode  of  pur- 

1  In  speaking   of    "a  legislature      the  President  and  his  advisers  as  "a 
consisting   of  three  branches,"  he      third  House." 
includes,  as  he  explains  a  little  later, 


APPENDIX  605 

suing  it,  or  arise  from  local  attachments ;  I  say  the  great  interest  in  their     APPENDIX 
country,  and  the  esteem,  confidence,  and  approbation  of  their  fellow-         XIX 
citizens,  must  be  strong  governing  principles  in  both  Houses,  as  well  as 
in  the  President  himself.1 

3.  Another  objection  is,  that  the  Constitution  proposed  will  annihi- 
late the  state- governments ,  or  reduce  them  to  mere  corporations.   I  take  it 
that  this  objection  is  thrown  out  (merely  invidia  causa)  without  the 
least  ground  for  it ;  for  I  do  not  find  one  article  of  the  Constitution  pro- 
posed, which  vests  Congress,  or  any  of  their  officers  or  courts,  with  a 
power  to  interfere  in  the  least  in  the  internal  police  or  government  of  any 
one  state,  when  the  interests  of  some  other  state,  or  strangers,  or  the  Union 
in  general,  are  not  concerned;  and  in  such  cases  it  is  absolutely  and  mani- 
festly necessary  that  Congress  should  have  a  controlling  power,  other- 
wise there  would  be  no  end  of  controversies  and  injuries  between  different 
states,  nor  any  safety  for  individuals,  nor  any  possibility  of  supporting  the 
Union  with  any  tolerable  degree  of  honour,  strength  or  security. 

4.  Another  objection  is  against  the  power  of  taxation  vested  in  Congress. 
But  I  answer,  this  is  absolutely  necessary  and  unavoidable,  from  the 
necessity  of  the  case;  I  know  it  is  a  tender  point,  a  vast  power,  and  a 
terrible  engine  of  oppression  and  tyranny  when  wantonly,  injudiciously, 
or  wickedly  used,  but  must  be  admitted;  for  it  is  impossible  to  support  the 
Union,  or  indeed  any  government,  without  expense  —  the  Congress  are 
the  proper  judges  of  that  expense,  the  amount  of  it,  and  the  best  means 
of  supplying  it ;  the  safety  of  the  states  absolutely  requires  that  this  power 
be  lodged  somewhere,  and  no  other  body  can  have  the  least  pretensions 
to  it;  and  no  part  of  the  resources  of  the  states  can,  with  any  safety  be 
exempt,  when  the  exigencies  of  the  Union  or  government  require  their 
utmost  exertion. 

The  stronger  we  make  our  government,  the  greater  protection  it  can  afford 
us,  and  the  greater  will  our  safety  be  under  it.  It  is  easy  enough  here  to 
harangue  on  the  arts  of  a  court  to  create  occasions  for  money,  or  the 
unbounded  extravagance  with  which  they  can  spend  it;  but  all  this  not- 
withstanding, we  must  take  our  courts  as  we  do  our  wives,  for  better  or 
for  worse.  We  hope  the  best  of  an  American  Congress,  but  if  they  dis- 
appoint us,  we  cannot  help  it;  it  is  in  vain  to  try  to  form  any  plan  of 
avoiding  the  frailties  of  human  nature.  —  Would  any  man  choose  a  lame 
horse  lest  a  sound  one  should  run  away  with  him?  or  will  any  man  prefer 
a  small  tent  to  live  in,  before  a  large  house,  which  may  fall  down  and 
crush  him  in  its  ruins?  No  man  has  any  right  to  find  fault  with  this 
article,  till  he  can  substitute  a  better  in  its  room. 

The  sixteen  Members  attempt  to  aggravate  the  horrors  of  this  de- 
vouring power,  by  suggesting  the  rigid  severity  with  which  Congress, 
with  their  faithful  soldiers,  will  exact  and  collect  the  taxes.  This  picture, 
stripped  of  its  black  drapery,  amounts  to  just  this,  viz.,  that  whatever 

1  "Vide  a  Dissertation  on  the  February  16,  1783,  where  the  sub- 
Political  Union  and  Constitution  of  ject  is  taken  up  at  large."  Taken 
the  Thirteen  United  States,  pub-  from  the  text  of  the  original  pam- 
lished  by  a  Citizen  of  Philadelphia,  phlet. 


6o6  APPENDIX 

APPENDIX  taxes  are  laid  will  be  collected,  without  exception,  from  every  person 
XIX  charged  with  them,  which  must  look  disagreeable,  I  suppose,  to  people 
who,  by  one  shift  or  another,  have  avoided  paying  taxes  all  their  lives. 
But  it  is  a  plain  truth,  and  will  be  obvious  to  anybody  who  duly 
considers  it,  that  nothing  can  be  more  ruinous  to  a  state,  or  oppressive 
to  individuals,  than  a  partial  and  dilatory  collection  of  taxes,  especially 
where  the  tax  is  an  impost  or  excise,  because  the  man  who  avoids  the 
tax,  can  undersell,  and  consequently  ruin,  him  who  pays  it,  i.  e.,  smug- 
gling ruins  the  fair  trader,  and  a  remedy  of  this  mischief,  I  cannot  sup- 
pose, will  be  deemed  by  our  people  in  general  such  a  very  awful  judgment, 
as  the  sixteen  members  would  make  us  believe  their  constituents  will 
consider  it  to  be. 

5.  They  object,  that  the  liberty  of  the  press  is  not  asserted  in  the  Con- 
stitution. I  answer,  neither  are  any  of  the  ten  commandments,  but  I  do 
not  think  that  it  follows  that  it  was  the  design  of  the  Convention  to 
sacrifice  either  the  one  or  the  other  to  contempt,  or  to  leave  them  void  of 
protection  and  effectual  support. 

6.  It  is  objected  farther,  that  the  Constitution  contains  no  declaration 
cf  rights.  I  answer,  this  is  not  true:  the  Constitution  contains  a  declara- 
tion of  many  rights,  and  very  important  ones,  e.  g.,  that  people  shall  be 
obliged  to  fulfil  their  contracts,  and  not  avoid  them  by  tenders  of  anything 
less  than  the  value  stipulated;  that  no  ex  post  facto  laws  shall  be  made, 
etc.,  but  it  was  no  part  of  the  business  of  their  appointment  to  make 
a  code  of  laws;  it  was  sufficient  to  fix  the  Constitution  right,  and  that  would 
pave  the  way  for  the  most  effectual  security  of  the  rights  of  the  sub- 
ject. 

7.  They  further  object,  that  no  provision  is  made  against  a  standing 
army  in  time  of  peace.   I  answer,  that  a  standing  army,  i.  e.,  regular 
troops,  are  often  necessary  in  time  of  peace,  to  prevent  a  war,  to  guard 
against  sudden  invasions,  for  garrison  duty,  to  quell  mobs  and  riots,  as 
guards  to  Congress  and  perhaps  other  courts,  etc.,  as  military  schools 
to  keep  up  the  knowledge  and  habits  of  military  discipline  and  exer- 
cise, etc.,  and  as  the  power  of  raising  troops  is  rightfully  and  without 
objection  vested  in  Congress,  so  they  are  the  proper est  and  best  judges  of 
the  number  requisite,  and  the  occasion,  time,  and  manner  of  employing 
them ;  if  they  are  not  wanted  on  military  duty  they  may  be  employed 
in  making  public  roads,  fortifications,  or  any  other  public  works:  they 
need  not  be  an  useless  burden  to  the  States:  and  for  all  this  the  prudence 
of  Congress  must  be  trusted,  and  nobody  can  have  a  right  to  object  to 
this,  till  they  can  point  out  some  way  of  doing  better. 

8.  Another  objection  is,  that  the  New  Constitution  abolishes  trial  by 
jury  in  civil  causes.  I  answer,  I  do  not  see  one  word  in  the  Constitution 
which,  by  any  candid  construction,  can  support  even  the  remotest 
suspicion  that  this  ever  entered  into  the  heart  of  one  Member  of  the 
Convention:  I  therefore  set  down  the  suggestion  for  sheer  malice,  and 
so  dismiss  it. 

9.  Another  objection  is,  that  the  federal  judiciary  is  so  constructed  as 
to  destroy  the  judiciaries  of  the  several  states,  and  that  the  appellate  juris- 


APPENDIX  607 

diction,  with  respect  to  law  and  fact,  is  unnecessary.  I  answer,  both  the     APPENDIX 
original  and  appellate  jurisdiction  of  the  federal  judiciary  are  mani-         XIX 
festly  necessary,  where  the  cause  of  action  affects  the  citizens  of  different 
states,  the  general  interest  of  the  Union ;  or  strangers  (and  to  cases  of  these 
descriptions  only  does  the  jurisdiction  of  the  federal  judiciary  extend) ; 
I  say,  these  jurisdictions  of  the  federal  judiciary  are  manifestly  necessary 
for  the  reasons  just  now  given  under  the  third  objection. 

I  do  not  see  how  they  can  avoid  trying  any  issue  joined  before  them, 
whether  the  thing  to  be  decided  is  law  or  fact;  but  I  think  no  doubt 
can  be  made,  that  if  the  issue  joined  is  fact,  it  must  be  tried  by  jury. 

10.  They  object,  that  the  election  of  Delegates  for  the  House  of  Repre- 
sentatives is  for  two  years,  and  of  Senators,  for  six  years.  I  think  this  a 
manifest  advantage,  rather  than  an  objection.  Very  great  inconveniences 
must  necessarily  arise  from  a  too  frequent  change  of  the  Members  of 
large  legislative  or  executive  bodies,  while  the  revision  of  every  past 
transaction  must  be  taken  up,  explained,  and  discussed  anew  for  the 
information  of  the  new  Members;  where  the  settled  rules  of  the  House 
are  little  understood  by  them,  etc.,  all  which  ought  to  be  avoided,  if  it 
can  be  with  safety. 

Further,  it  is  plain  that  any  man  who  serves  in  such  bodies  is  better 
qualified  the  second  year  than  he  could  be  the  first,  because  experience 
adds  qualifications  for  every  business,  etc.  The  only  objection  is,  that 
long  continuance  affords  danger  of  corruption,  but  for  this  the  Con- 
stitution provides  a  remedy  by  impeachment  and  expulsion,  which  will 
be  sufficient  restraint,  unless  a  majority  of  the  House  and  Senate  should 
become  corrupt,  which  is  not  easily  presumable:  in  fine,  there  is  a  certain 
mean  between  too  long  and  too  short  continuances  of  Members  in  Con- 
gress, and  I  cannot  see  but  it  is  judiciously  fixed  by  the  Convention. 

Upon  the  whole  matter,  I  think  the  sixteen  Members  have  employed 
an  address-writer  of  great  dexterity,  who  has  given  us  a  strong  sample 
of  ingenious  malignity  and  ill  nature  —  a  masterpiece  of  high  colouring 
in  the  scare-crow  way ;  in  his  account  of  the  conduct  of  the  sixteen  Mem- 
bers, by  an  unexpected  openness  and  candour,  he  avows  facts  which  he 
certainly  cannot  expect  to  justify,  or  even  hope  that  their  constituents 
will  patronize  or  even  approve,  but  he  seems  to  lose  all  candour  when  he 
deals  in  sentiments;  when  he  comes  to  point  out  the  nature  and  operation 
of  the  New  Constitution,  he  appears  to  mistake  the  spirit  and  true  prin- 
ciples of  it  very  much ;  or,  which  is  worse,  takes  pleasure  in  showing  it 
in  the  worst  light  he  can  paint  it  in. 

I  however  agree  with  him  in  this,  "that  this  is  the  time  for  considera- 
tion and  minute  examination"-,  and,  I  think,  the  great  subject,  when 
viewed  seriously  without  passion  or  prejudice,  will  bear,  and  brighten 
under,  the  severest  examination  of  the  rational  enquirer.  If  the  provisions 
of  the  law  or  Constitution  do  not  exceed  the  occasions,  if  the  remedies  are 
not  extended  beyond  the  mischiefs,  the  government  cannot  be  justly 
charged  with  severity;  on  the  other  hand,  if  the  provisions  are  not  ade- 
quate to  the  occasions,  and  the  remedies  not  equal  to  the  mischiefs,  the 
government  must  be  too  lax,  and  not  sufficiently  operative  to  give  the 


608  APPENDIX 

APPENDIX      necessary  security  to  the  subject:  to  form  a  right  judgment,  we  must 

XIX          compare  these  two  things  well  together,  and  not  suffer  our  minds  to 

dwell  on  one  of  them  alone,  without  considering  it  in  connection  with  the 

other;  by  this  means  we  shall  easily  see  that  the  one  makes  the  other 

necessary. 

Were  we  to  view  only  the  gaols  and  dungeons,  the  gallows  and  pil- 
lories, the  chains  and  wheelbarrows,  of  any  State,  we  might  be  induced  to 
think  the  government  severe;  but  when  we  turn  our  attention  to  the 
murders  and  parricides,  the  robberies  and  burglaries,  the  piracies  and 
thefts,  which  merit  these  punishments,  our  idea  of  cruelty  vanishes  at 
once,  and  we  admire  the  justice,  and  perhaps  clemency  of  that  govern- 
ment, which  before  shocked  us  as  too  severe.  So  when  we  fix  our  atten- 
tion only  on  the  superlative  authority  and  energetic  force  vested  in 
Congress,  and  our  federal  executive  powers  by  the  New  Constitution, 
we  may  at  first  sight  be  induced  to  think  that  we  yield  more  of  the 
sovereignty  of  the  States  and  of  personal  liberty,  than  is  requisite  to  main- 
tain the  federal  government;  but  when,  on  the  other  hand,  we  consider 
with  full  survey  the  vast  supports  which  the  Union  requires,  and  the 
immense  consequence  of  that  UNION  to  us  all,  we  shall  probably  soon  be 
convinced  that  the  powers  aforesaid,  extensive  as  they  are,  are  not 
greater  than  is  necessary  for  our  benefit :  for, 

1.  No  laws  of  any  State,  which  do  not  carry  in  them  a  force  which  ex- 
tends to  their  effectual  and  final  execution,  can  afford  a  certain  and  suf- 
ficient security  to  the  subject;  for, 

2.  Laws  of  any  kind,  which  fail  of  execution,  are  worse  than  none, 
because  they  weaken  the  government,  expose  it  to  contempt,  destroy 
the  confidence  of  all  men,  both  subjects  and  strangers,  in  it,  and  dis- 
appoint all  men  who  have  confided  in  it. 

In  fine,  our  union  can  never  be  supported  without  definite  and  ef- 
fectual laws,  which  are  co-extensive  with  their  occasions,  and  which 
are  supported  by  authorities  and  powers  which  can  give  them  execu- 
tion with  energy;  if  admitting  such  powers  into  our  Constitution  can 
be  called  a  sacrifice,  it  is  a  sacrifice  to  safety,  and  the  only  question  is, 
whether  our  UNION  or  federal  government  is  worth  this  sacrifice. 

Our  UNION,  I  say,  under  the  protection  of  which  every  individual 
rests  secure  against  foreign  and  domestic  insult  and  oppression;  but 
without  it  we  can  have  no  security  against  invasions,  insults,  and  op- 
pressions of  foreign  powers,  or  against  the  inroads  and  wars  of  one  State 
on  another,  or  even  against  insurrections  and  rebellions  arising  within 
particular  States,  by  which  our  wealth  and  strength,  as  well  as  ease, 
comfort,  and  safety,  will  be  devoured  by  enemies  growing  out  of  our 
own  bowels. 

It  is  our  UNION  alone  which  can  give  us  respectability  abroad  in  the 
eyes  of  foreign  nations,  and  secure  to  us  all  the  advantages  both  of 
trade  and  safety,  which  can  be  derived  from  treaties  with  them. 

The  Thirteen  States,  all  united  and  well  cemented  together,  are  a 
strong,  rich,  and  formidable  body  not  of  stationary,  matured  power, 
but  increasing  every  day  in  riches,  strength  and  numbers. 


APPENDIX  609 

Thus  circumstanced,  we  can  demand  the  attention  and  respect  of  all     APPENDIX 
foreign  nations,  but  they  will  give  us  both  in  exact  proportion  to  the         XIX 
solidity  of  our  union:  for  if  they  observe  our  union  to  be  lax,  from  in- 
sufficient principles  of  cement  in  our  Constitution,  or  mutinies  and  in- 
surrections of  our  own  people  (which  are  the  direct  consequence  of  an 
insufficient  cement  of  union) ;  I  say,  when  foreign  nations  see  either  of 
these,  they  will  immediately  abate  of  their  attention  and  respect  to  us, 
and  confidence  in  us. 

And  as  it  appears  to  me,  that  the  New  Constitution  does  not  vest 
Congress  with  more  or  greater  powers  than  are  necessary  to  support 
this  important  union,  I  wish  it  may  be  admitted  in  the  most  cordial 
and  unanimous  manner  by  all  the  States. 

It  is  a  human  composition,  and  may  have  errors  which  future  ex- 
perience will  enable  us  to  discover  and  correct;  but  I  think  it  is  very 
plain,  if  it  has  faults,  that  the  address-writer  of  the  sixteen  members 
has  not  been  able  to  find  them;  for  he  has  all  along  either  hunted  down 
phantoms  of  error,  that  have  no  real  existence,  or,  which  is  worse,  tar- 
nished real  excellencies  into  blemishes. 

I  have  dwelt  the  longer  on  these  remarks  of  this  writer,  because  I 
observe  that  all  the  scribblers  in  our  papers  against  the  New  Constitu- 
tion, have  taken  their  cue  principally  from  him;  all  their  lucubrations 
contain  little  more  than  his  ideas  dressed  out  in  a  great  variety  of  forms; 
one  of  which  colours  so  high  as  to  make  the  New  Constitution  strongly 
resemble  the  Turkish  government  (vide  Gazetteer,  of  the  loth  instant) 
which,  I  think,  comes  about  as  near  the  truth  as  any  of  the  rest,  and 
brings  to  my  mind  a  sentiment  ift  polemical  divinity,  which  I  have 
somewhere  read,  that  there  were  once  great  disputes  and  different 
opinions  among  drones  about  the  mark  which  was  set  on  Cain,  when 
one  of  them  very  gravely  thought  it  was  born  fully  grown  out  on  his 
forehead.  It  is  probable  he  could  not  think  of  a  worse  mark  than  that. 

On  the  whole  matter,  there  is  no  aid  to  extravagancies  of  the  human 
fancy  which  are  commonly  dictated  by  poignant  feelings,  disordered 
passionsj  or  affecting  interests;  but  I  could  wish  my  fellow-citizens, 
in  the  matter  of  vast  importance  before  us,  would  divest  themselves  of 
bias,  passion,  and  little  personal  or  local  interests,  and  consider  the 
great  subject  with  that  dignity  of  reason,  and  independence  of  senti- 
ment, wrhich  national  interests  ever  require. 

I  have  here  given  my  sentiments  with  the  most  unbiased  freedom, 
and  hope  they  will  be  received  with  the  most  candid  attention  and 
unbiased  discussion  by  the  State  in  which  I  live,  and  in  which  I  expect 
to  leave  my  children. 

I  will  conclude  with  one  observation,  which  I  take  to  be  very  capi- 
tal, viz.,  that  the  distresses  and  oppressions,  both  of  nations  and  in- 
dividuals, often  arise  from  the  powers  of  government  being  too  limited 
in  their  principle,  too  indeterminate  in  their  definition,  or  too  lax  in  their 
execution,  and,  of  course  the  safety  of  the  citizens  depends  much  on 
full  and  definite  powers  of  government,  and  an  effectual  execution  of 
them. 


XX 

THE  CONSTITUTION  OF  THE  UNITED  STATES 
AND  ITS  AMENDMENTS,  WITJJ  NOTES  AND 
ANNOTATIONS  TO  DATE1 

APPENDIX  WE  THE  PEOPLE  of  the  United  States,  in  Order  to  form  a  more  perfect 
Union,  establish  Justice,  insure  domestic  Tranquility,  provide  for  the 
common  defence,  promote  the  general  Welfare,  and  secure  the  Bless- 
ings of  Liberty  to  ourselves  and  our  Posterity,  do  ordain  and  establish 
this  CONSTITUTION  for  the  United  States  of  America. 

Chisholm  v.  Georgia,  2  Dall.  419;  McCulloch  v.  State  of  Maryland 
et  al.,  4  Wh.  316;  Brown  et  al.  v.  Maryland,  12  Wh.  419;  Barren  v. 
The  Mayor  and  City  Council  of  Baltimore,  7  Pet.  243;  Lane  County 
v.  Oregon,  7  Wall.  71;  Texas  v.  White  et  al.,  7  Wall.  700;  Claflin  v. 
Houseman,  assignee,  93  U.  S.  130;  Williams  v.  Bruffy,  96  U.  S.  176; 
Tennessee  ».  Davis,  100  U.  S.  257;  Langford  v.  United  States,  101 
U.  S.  341;  United  States  v.  Jones,  109  U.  S.  513;  Fort  Leavenworth 
Railroad  Co.  v.  Lowe,  114  U.  S.  525;  The  Chinese  Exclusion  Case,  130 
U.  S.  581;  Geofroy  v.  Riggs,  133  ¥.  S.  258;  In  re  Neagle,  135  U.  S.  i; 
In  re  Ross,  140  U.  S.  453;  Logan  v.  United  States,  144  U.  S.  263;  Las- 
celles  v.  Georgia,  148  U.  S.  537;  Fong  Yue  Ting  v.  United  States,  149 
U.  S.  698;  In  re  Tyler,  149  U.  S.  164;  United  States  v.  E.  C.  Knight 
Co.,  156  U.  S.  i;  Mattox  v.  United  States,  156  U.  S.  237;  In  re  Quarles 
and  Butler,  158  U.  S.  532;  In  re  Debs,  Petitioner,  158  U.  S.  564;  Ward 
v.  Race  Horse,  163  U.  S.  504;  De  Lima  v.  Bidwell,  182  U.  S.  i;  Prout 
v.  Starr,  188  U.  S.  537;  Jacobson  v.  Massachusetts,  197  U.  S.  u;  South 
Carolina  v.  United  States,  199  U.  S.  437;  Ellis  v.  United  States,  206 
U.  S.  246;  Muller  v.  Oregon,  208  U.  S.  412. 

ARTICLE  I 

SECTION  i .  All  legislative  Powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,  which  shall  consist  of  a  Senate  and  House 
of  Representatives. 

Hayburn's  Case  (notes),  2  Dall.  409;  Fields.  Clark,  143  U.  S.  649; 
Union  Bridge  Co.  v.  United  States,  204  U.  S.  364;  United  States 
v.  Heinszen,  206  U.  S.  370;  St.  Louis  and  Iron  Mountain  Railway  ». 
Taylor,  210  U.  S.  281. 

SECTION  2.  The  House  of  Representatives  shall  be  composed  of 
Members  chosen  every  second  Year  by  the  People  of  the  several  States, 

1  I  am  indebted  to  my  learned  able  assistance  in  preparing  the  table 
friend,  James  H.  Dorman,  for  valu-  of  cases. 


APPENDIX  6ll 

and  the  Electors  in  each  State  shall  have  the  Qualifications  requisite  for     APPENDIX 
Electors  of  the  most  numerous  Branch  of  the  State  Legislature.  XX 

In  re  Green,  134  U.  S.  377;  Wiley  v.  Sinkler,  179  U.  S.  58;  Ex  parte 
Yarbrough,  1 10  U.  S.  651. 

No  Person  shall  be  a  Representative  who  shall  not  have  attained  to 
the  Age  of  twenty-five  Years,  and  been  seven  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  Inhabitant  of  that 
State  in  which  he  shall  be  chosen. 

[Representatives  and  direct  Taxes  shall  be  apportioned  among  the 
several  States  which  may  be  included  within  this  Union,  according  to 
their  respective  Numbers,  which  shall  be  determined  by  adding  to  the 
whole  Number  of  free  Persons,  including  those  bound  to  Service  for  a 
Term  of  Years,  and  excluding  Indians  not  taxed,  three  fifths  of  all  other 
Persons.]  l  The  actual  Enumeration  shall  be  made  within  three  Years 
after  the  first  Meeting  of  the  Congress  of  the  United  States,  and  within 
every  subsequent  Term  of  ten  Years,  in  such  Manner  as  they  shall  by 
Law  direct.  The  Number  of  Representatives  shall  not  exceed  one  for 
every  thirty  Thousand,  but  each  State  shall  have  at  Least  one  Repre- 
sentative; and  until  such  enumeration  shall  be  made,  the  State  of  New 
Hampshire  shall  be  entitled  to  chuse  three,  Massachusetts  eight,  Rhode- 
Island  and  Providence  Plantations  one,  Connecticut  five,  New- York  six, 
New  Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maryland  six, 
Virginia  ten,  North  Carolina  five,  South  Carolina  five,  and  Georgia 
three. 

Dred  Scott  v.  Sandford,  19  Howard,  393;  Veazie  Bank  v.  Fenno,  8 
Wall.  533;  Scholey  v.  Rew,  23  Wall.  331;  De  Treville  v.  Smalls,  98 
U.  S.  517;  Gibbons  v.  District  of  Columbia,  116  U.  S.  404;  Pollock  v. 
Farmers'  Loan  &  Trust  Co.  (Income  Tax  Case),  157  U.  S.  429;  Pol- 
lock v.  Farmers'  Loan  &  Trust  Co.  (Rehearing),  158  U.  S.  601 ;  Thomas 
v.  United  States,  192  U.  S.  363. 

When  vacancies  happen  in  the  Representation  from  any  State,  the 
Executive  Authority  thereof  shall  issue  Writs  of  Election  to  fill  such 
Vacancies. 

The  House  of  Representatives  shall  chuse  their  Speaker  and  other 
Officers;  and  shall  have  the  sole  Power  of  Impeachment. 

SECTION  3.  The  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  chosen  by  the  Legislature  thereof,  for  six 
Years;  and  each  Senator  shall  have  one  Vote. 

Immediately  after  they  shall  be  assembled  in  Consequence  of  the  first 
Election,  they  shall  be  divided  as  equally  as  may  be  into  three  Classes. 
The  Seats  of  the  Senators  of  the  first  Class  shall  be  vacated  at  the  Ex- 
piration of  the  second  Year,Jof  the  second  Class  at  the  Expiration  of  the 
fourth  Year,  and  of  the  third  Class  at  the  Expiration  of  the  sixth  Year, 
so  that  one  third  may  be  chosen  every  second  Year;  and  if  Vacancies 

1  The  clause  included  in  brackets  is  amended  by  the  Fourteenth 
Amendment,  second  section. 


612  APPENDIX 

APPENDIX  happen  by  Resignation,  or  otherwise,  during  the  Recess  of  the  Legisla- 
XX  ture  of  any  State,  the  Executive  thereof  may  make  temporary  Appoint- 

ments until  the  next  Meeting  of  the  Legislature,  which  shall  then  fill 
such  Vacancies. 

No  Person  shall  be  a  Senator  who  shall  not  have  attained  to  the  Age 
of  thirty  Years,  and  been  nine  Years  a  Citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  Inhabitant  of  that  State  for  which  he 
shall  be  chosen. 

The  Vice  President  of  the  United  States  shall  be  President  of  the 
Senate,  but  shall  have  no  Vote,  unless  they  be  equally  divided. 

The  Senate  shall  chuse  their  other  Officers,  and  also  a  President 
pro  tempo  re,  in  the  absence  of  the  Vice- President,  or  when  he  shall 
exercise  the  Office  of  President  of  the  United  States. 

The  Senate  shall  have  the  sole  Power  to  try  all  Impeachments. 
When  sitting  for  that  Purpose,  they  shall  be  on  Oath  or  Affirmation. 
When  the  President  of  the  United  States  is  tried,  the  Chief  Justice  shall 
preside:  And  no  Person  shall  be  convicted  without  the  Concurrence  of 
two  thirds  of  the  Members  present. 

Judgment  in  Cases  of  Impeachment  shall  not  extend  further  than  to 
removal  from  Office,  and  disqualification  to  hold  and  enjoy  any  Office 
of  honor,  Trust,  or  Profit  under  the  United  States :  but  the  Party  con- 
victed shall  nevertheless  be  liable  and  subject  to  Indictment,  Trial, 
Judgment  and  Punishment,  according  to  Law. 

SECTION  4.  The  Times,  Places  and  Manner  of  holding  Elections  for 
Senators  and  Representatives,  shall  be  prescribed  in  each  State  by  the 
Legislature  thereof;  but  the  Congress  may  at  any  time  by  Law  make 
or  alter  such  Regulations,  except  as  to  the  Places  of  chusing  Senators. 

Ex  parte  Siebold,  100  U.  S.  371;  Ex  parte  Clarke,  100  U.  S.  399;  Ex 
parte  Yarbrough,  no  U.  S.  651;  United  States  v.  Waddell  et  al.,  112 
U.  S.  76;  In  re  Coy,  127  U.  S.  731. 

The  Congress  shall  assemble  at  least  once  in  every  Year,  and  such 
Meeting  shall  be  on  the  first  Monday  in  December,  unless  they  shall 
by  Law  appoint  a  different  Day. 

SECTION  5.  Each  House  shall  be  the  Judge  of  the  Elections,  Returns 
and  Qualifications  of  its  own  Members,  and  a  Majority  of  each  shall 
constitute  a  Quorum  to  do  Business;  but  a  smaller  Number  may  ad- 
journ from  day  to  day,  and  may  be  authorized  to  compel  the  Attend- 
ance of  absent  Members,  in  such  Manner,  and  under  such  Penalties 
as  each  House  may  provide. 

In  re  Loney,  134  U.  S.  372;  United  States  v.  Ballin,  144  U.  S.  I. 

Each  House  may  determine  the  Rules  of  its  Proceedings,  punish  its 
Members  for  disorderly  Behaviour,  and,  with  the  Concurrence  of  two 
thirds,  expel  a  Member. 

Anderson  v.  Dunn,  6  Wh.  204;  Kilbourn  v.  Thompson,  103  U.  S. 
168;  United  States  v.  Ballin,  144  U.  S.  I ;  In  re  Chapman,  166  U.  S.  661. 


APPENDIX  613 

Each  House  shall  keep  a  Journal  of  its  Proceedings,  and  from  time     APPENDIX 
to  time  publish  the  same,  excepting  such  Parts  as  may  in  their  Judg-          XX 
ment  require  Secrecy;  and  the  Yeas  and  Nays  of  the  Members  of  either 
House  on  any  question  shall,  at  the  Desire  of  one  fifth  of  those  Present, 
be  entered  on  the  Journal. 

Field  v.  Clark,  143  U.  S.  649;  United  States  v.  Ballin,  144  U.  S.  i; 
Twin  City  Bank  v.  Nebeker,  167  U.  S.  196;  Wilkes  County  v.  Coler, 
1 80  U.  S.  506. 

Neither  House,  during  the  Session  of  Congress,  shall,  without  the 
Consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to  any 
other  Place  than  that  in  which  the  two  Houses  shall  be  sitting. 

SECTION  6.  The  Senators  and  Representatives  shall  receive  a  Com- 
pensation for  their  Services,  to  be  ascertained  by  Law,  and  paid  out 
of  the  Treasury  of  the  United  States.  They  shall  in  all  Cases,  except 
Treason,  Felony  and  Breach  of  the  Peace,  be  privileged  from  Arrest  dur- 
ing their  Attendance  at  the  Session  of  their  respective  Houses,  and  in 
going  to  and  returning  from  the  same;  and  for  any  Speech  or  Debate 
in  either  House,  they  shall  not  be  questioned  in  any  other  Place. 

Coxe  v.  M'Clenachan,  3  Dall.  478;  Kilbourn  v.  Thompson,  103  U.  S. 
168;  Williamson  v.  United  States,  207  U.  S.  425. 

No  Senator  or  Representative  shall,  during  the  Time  for  which  he 
was  elected,  be  appointed  to  any  civil  Office  under  the  Authority  of  the 
United  States,  which  shall  have  been  created,  or  the  Emoluments 
whereof  shall  have  been  encreased  during  such  time;  and  no  Person 
holding  any  Office  under  the  United  States,  shall  be  a  Member  of 
either  House  during  his  Continuance  in  Office. 

SECTION  7.  All  Bills  for  raising  Revenue  shall  originate  in  the 
House  of  Representatives;  but  the  Senate  may  propose  or  concur  with 
Amendments  as  on  other  Bills. 

Field  v.  Clark,  143  U.  S.  649;  Twin  City  Bank  v.  Nebeker,  167 
U.  S.  196;  Millard  v.  Roberts,  202  U.  S.  429. 

Every  Bill  which  shall  have  passed  the  House  of  Representatives  and 
the  Senate,  shall,  before  it  become  a  Law,  be  presented  to  the  President 
of  the  United  States;  If  he  approve  he  shall  sign  it,  but  if  not  he  shall 
return  it,  with  his  Objections  to  that  House  in  which  it  shall  have  orig- 
inated, who  shall  enter  the  Objections  at  large  on  their  Journal,  and 
proceed  to  reconsider  it.  If  after  such  Reconsideration  two  thirds  of 
that  House  shall  agree  to  pass  the  Bill,  it  shall  be  sent,  together  with 
the  Objections,  to  the  other  House,  by  which  it  shall  likewise  be  recon- 
sidered, and  if  approved  by  two  thirds  of  that  House,  it  shall  become 
a  Law.  But  in  all  such  Cases  the  Votes  of  both  Houses  shall  be  deter- 
mined by  Yeas  and  Nays,  and  the  Names  of  the  Persons  voting  for  and 
against  the  Bill  shall  be  entered  on  the  Journal  of  each  House  respect- 
ively. If  any  Bill  shall  not  be  returned  by  the  President  within  ten 
Days  (Sundays  excepted)  after  it  shall  have  been  presented  to  him,  the 


614  APPENDIX 

APPENDIX     Same  shall  be  a  Law,  in  like  Manner  as  if  he  had  signed  it,  unless  the 
XX  Congress  by  their  Adjournment  prevent  its  Return,  in  which  Case  it 

shall  not  be  a  Law. 

Field  v.  Clark,  143  U.  S.  649;  United  States  v.  Ballin,  144  U.  S.  i; 
Twin  City  Bank  r.  Nebeker,  167  U.  S.  196;  La  Abra  Silver  Mining 
Co.  v.  United  States,  175  U.  S.  423;  Wilkes  County  v.  Coler,  180  U.  S. 
506. 

Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary  (except  on  a 
question  of  Adjournment)  shall  be  presented  to  the  President  of  the 
United  States;  and  before  the  Same  shall  take  Effect,  shall  be  approved 
by  him,  or  being  disapproved  by  him,  shall  be  repassed  by  two  thirds 
of  the  Senate  and  House  of  Representatives,  according  to  the  Rules 
and  Limitations  prescribed  in  the  Case  of  a  Bill. 

Field  v.  Clark,  143  U.  S.  649;  United  States  v.  Ballin,  144  U.  S.  i; 
Fourteen  Diamond  Rings  v.  United  States,  183  U.  S.  176. 

SECTION  8.  The  Congress  shall  have  Power  To  lay  and  collect  Taxes, 
Duties,  Imposts  and  Excises,  to  pay  the  Debts  and  provide  for  the  com- 
mon Defence  and  general  Welfare  of  the  United  States;  but  all  Duties, 
Imposts  and  Excises  shall  be  uniform  throughout  the  United  States; 

Hylton  v.  United  States,  3  Dall.  171;  McCulloch  v.  State  of  Mary- 
land, 4  Wh.  316;  Loughborough  v.  Blake,  5  Wh.  317;  Osborn  v.  Bank  of 
the  United  States,  9  Wh.  738;  Weston  et  al.  v.  City  Council  of  Charles- 
ton, 2  Pet.  449;  Dobbins  v.  The  Commissioners  of  Erie  County, 
1 6  Pet.  435;  License  Cases,  5  How.  504;  Cooley  v.  Board  of  Wardens 
of  Port  of  Philadelphia  et  al.,  12  How.  299;  McGuire  v.  The  Com- 
monwealth, 3  Wall.  387;  Van  Allen  v.  The  Assessors,  3  Wall.  573;  Brad- 
ley v.  The  People,  4  Wall.  459;  License  Tax  Cases,  5  Wall.  462;  Per- 
vear  v.  The  Commonwealth,  5  Wall.  475;  Woodruff  v.  Parham,  8  Wall. 
123;  Hinson  v.  Lott,  8  Wall.  148;  Veazie  Bank  v.  Fenno,  8  Wall.  533; 
The  Collector  v.  Day,  II  Wall.  113;  United  States  v.  Singer,  15  Wall, 
in;  State  Tax  on  Foreign-held  Bonds,  15  Wall.  300;  United  States 
v.  Railroad  Company,  17  Wall.  322;  Railroad  Company  v.  Peniston, 
1 8  Wall.  5;  Scholey  v.  Rew,  23  Wall.  331;  Springer  v.  United  States, 
102  U.  S.  586;  Legal  Tender  Case,  no  U.  S.  421;  California  v.  Central 
Pacific  Railroad  Co.,  127  U.  S.  i;  Ratterman  v.  Western  Union  Tele- 
graph Co.,  127  U.  S.  411;  Leloup  v.  Port  of  Mobile,  127  U.  S.  640; 
Field  v.  Clark,  143  U.  S.  649;  Pollock  v.  Farmers'  Loan  &  Trust  Co., 
157  U.  S.  429;  United  States  v.  Realty  Co.,  163  U.  S.  427;  Nicol  v. 
Ames,  173  U.  S.  509;  Knowlton  v.  Moore,  178  U.  S.  41;  De  Lima  v. 
Bidwell,  182  U.  S.  i;  Dooley  v.  United  States,  182  U.  S.  222;  Fourteen 
Diamond  Rings  v.  United  States,  183  U.  S.  176;  Felsenheld  v.  United 
States,  186  U.  S.  126;  Thomas  v.  United  States,  192  U.  S.  363;  Binns 
v.  United  States,  194  U.  S.  486;  South  Carolina  v.  United  States,  199 
U.  S.  437. 

To  borrow  money  on  the  credit  of  the  United  States ; 

McCulloch  v.  The  State  of  Maryland,  4  Wh.  316;  Weston  et  al.  v. 
The  City  Council  of  Charleston,  2  Pet.  449;  Bank  of  Commerce  r. 


APPENDIX  615 

New  York  City,  2  Black,  620;  Bank  Tax  Cases,  2  Wall.  200;  The  Banks      APPENDIX 
v.  The  Mayor,  7  Wall.  16;  Bank  v.  Supervisors,  7  Wall.  26;  Hepburn  XX 

v.  Griswold,  8  Wall.  603;  National  Bank  v.  Commonwealth,  9  Wall. 
353;  Parker  v.  Davis,  12  Wall.  457;  Legal  Tender  Case,  no  U.  S.  421; 
Home  Insurance  Company  r.  New  York,  134  U.  S.  594;  Home  Savings 
Bank  v.  Des  Moines,  205  U.  S.  503. 

To  regulate  Commerce  with  foreign  Nations,  and  among  the  several 
States,  and  with  the  Indian  Tribes; 

Gibbons  v.  Ogden,  9  Wh.  i;  Brown  et  als.  v.  State  of  Maryland,  12 
Wh.  419;  Wilson  et  al.  v.  Black  Bird  Creek  Marsh  Company,  2  Pet. 
245;  Worcester  v.  The  State  of  Georgia,  6  Pet.  515;  City  of  New  York, 
v.  Miln,  n  Pet.  102;  United  States  v.  Coombs,  12  Pet.  72;  Holmes  v. 
Jennison  et  al.,  14  Pet.  540;  License  Cases,  5  How.  504;  Passenger 
Cases,  7  How.  283;  Nathan  v.  Louisiana,  8  How.  73;  Mager  v.  Grima 
et  al.,  8  How.  490;  United  States  v.  Marigold,  9  How.  560;  Cowley  v. 
Board  of  Wardens  of  Port  of  Philadelphia,  12  How.  299;  The  Propeller 
Genesee  Chief  et  al.  v.  Fitzhugh  et  al.,  12  How.  443;  State  of  Pennsyl- 
vania v.  The  Wheeling  Bridge  Co.,  13  How.  518;  Veazie  et  al.  v.  Moore, 
14  How.  568;  Smith  v.  State  of  Maryland,  18  How.  71;  State  of  Penn- 
sylvania v.  The  Wheeling  and  Belmont  Bridge  Co.  et  al.,  18  How.  421; 
Sinnot  v.  Davenport,  22  How.  227;  Foster  et  al.  v.  Davenport  et  al., 
22  How.  244;  Conway  et  al.  v.  Taylor's  Ex.,  I  Black  603;  United  States 
v.  Holliday,  3  Wall.  407;  Gilman  v.  Philadelphia,  3  Wall.  713;  The  Pas- 
saic  Bridges,  3  Wall.  782;  Steamship  Company  v.  Port  Wardens,  6 
Wall.  31;  Crandall  v.  State  of  Nevada,  6  Wall.  35;  White's  Bank  v. 
Smith,  7  Wall.  646;  Waring  v.  The  Mayor,  8  Wall,  no;  Paul  v.  Virginia, 
8  Wall.  168;  Thomson  v.  Pacific  Railroad,  9  Wall.  579;  Downham  et  al. 
v.  Alexandria  Council,  10  Wall.  173;  The  Clinton  Bridge,  10  Wall.  454; 
The  Daniel  Ball,  10  Wall.  557;  Liverpool  Insurance  Company  v.  Massa- 
chusetts, 10  Wall.  566;  The  Montello,  11  Wall.  411;  Ex  parte  McNiel, 
13  Wall.  236;  State  Freight  Tax,  15  Wall.  232;  State  Tax  on  Railway 
Gross  Receipts,  15  Wall.  284;  Osborn  v.  Mobile,  16  Wall.  479;  Railroad 
Company  v.  Fuller,  17  Wall.  560;  Bartemeyer  v.  Iowa,  18  Wall.  129; 
The  Delaware  Railroad  Tax,  18  Wall.  206;  Peete  v.  Morgan,  19  Wall. 
581;  Railroad  Company  v.  Richmond,  19  Wall.  584;  B.  and  O.  Rail- 
road Company  v.  Maryland,  21  Wall.  456;  The  Lotta wanna,  21  Wall. 
558;  Henderson  et  al.  v.  The  Mayor  of  the  City  of  New  York,  92 
U.  S.  259;  Chy  Lung  v.  Freeman  et  al.,  92  U.  S.,  275;  South  Carolina 
v.  Georgia  et  al.,  93  U.  S.  4;  Sherlock  et  al.  v.  Ailing,  adm.,  93  U.  S.  99; 
United  States  v.  Forty-three  Gallons  of  Whisky,  etc.,  93  U.  S.  188; 
Foster  v.  Master  and  Wardens  of  the  Port  of  New  Orleans,  94  U.  S. 
246;  Railroad  Co.  v.  Husen,  95  U.  S.  465;  Pensacola  Tel.  Co.  v.  W.  U. 
Tel.  Co.,  96  U.  S.  i;  Beer  Co.  v.  Massachusetts,  97  U.  S.  25;  Cook  v. 
Pennsylvania,  97  U.  S.  566;  Packet  Co.  v.  St.  Louis,  100  U.  S.  423; 
Wilson  v.  McNamee,  102  U.  S.  572;  Moran  v.  New  Orleans,  112  U.  S. 
69;  Head  Money  Cases,  112  U.  S.  580;  Cooper  Mfg.  Co.  v.  Ferguson, 
113  U.  S.  727;  Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196; 
Brown  v.  Houston,  114  U.  S.  622;  Walling  v.  Michigan,  116  U.  S.  446; 
Pickard  v.  Pullman  Southern  Car  Co.,  117  U.  S.  34;  Tennessee  v.  Pull- 
man Southern  Car  Co.,  117  U.  S.  51;  Spraigue  v.  Thompson,  118  U.  S. 
90;  Morgan  v.  Louisiana,  118  U.  S.  455;  Wabash,  St.  Louis  and  Pacific 


616  APPENDIX 

APPENDIX  Ry«  »•  Illinois,  118  U.  S.  557;  Huse  v.  Glover,  119  U.  S.  543;  Robbinsv. 

XX  Shelby  Co.  Taxing  Dist,,  120  U.  S.  489;  Corson  v.  Maryland,  120  U.  S. 

502;  Barron  v.  Burnside,  121  U.  S.  186;  Fargo  v.  Michigan,  121  U.  S. 
230;  Ouachita  Packet  Co.  v.  Aiken,  121  U.  S.  444;  Phila.  and  Southern 
S.  S.  Co.  v.  Penna.,  122  U.  S.  326;  W.  U.  Tel.  Co.  v.  Pendleton,  122  U.  S. 
347;  Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S.  288;  Smith  v. 
Alabama,  124  U.  S.  465;  Willamette  Iron  Bridge  Co.  v.  Hatch,  125 
U.  S.  i;  Pembina  Mine  Co.  v.  Penna.,  125  U.  S.  181;  Bowman  v. 
Chicago  Northwestern  Rwy.  Co.,  125  U.  S.  465;  Western  Union 
Tel.  Co.  v.  Mass.,  125  U.  S.  530;  California  v.  Central  Pacific  R.  R. 
Co.,  127  U.  S.  i;  Leloup  v.  Port  of  Mobile,  127  U.  S.  640;  Kidd  v. 
Pearson,  128  U.  S.  i;  Asher  v.  Texas,  128  U.  S.  129;  Stoutenberg  i;. 
Hennick,  129  U.  S.  141 ;  Western  Union  Tel.  Co.  v.  Alabama,  132  U.  S. 
472;  Frittsu.  Palmer,  132  U.  S.  282 ;  Louisville,  N.  O.,  &c.,  Railway  v. 
Mississippi,  133  U.  S.  587;  Leisy  v.  Hardin,  135  U.  S.  100;  Lyng  v. 
Michigan,  135  U.  S.  161;  Cherokee  Nation  v.  Kansas  Railway  Co.,  135 
U.  S.  641;  McCall  v.  California,  136  U.  S.  104;  Norfolk  &  Western  R. 
Rd.  v.  Pennsylvania,  136  U.  S.  114;  Minnesota  v.  Barber,  136  U.  S. 
313;  Texas  &  Pacific  Ry.  Co.  v.  Southern  Pacific  Co.,  137  U.  S.  48; 
Brimmer  v.  Rebman,  138  U.  S.  78;  Manchester  v.  Massachusetts, 
139  U.  S.  240;  In  re  Rahrer,  140  U.  S.  545;  Pullman  Palace  Car  Co. 
v.  Penna.,  141  U.  S.  18;  Pullman  Palace  Car  Co.  v.  Hayward,  141 
U.  S.  36;  Att'y-Gen.  v.  West'n  Union  Tel.  Co.,  141  U.  S.  40;  Crutcherr. 
Kentucky,  141  U.  S.  47;  Henderson  Bridge  Co.  v.  Henderson,  141  U.  S. 
679;  In  re  Garnett,  141  U.  S.  i;  Maine  v.  Grand  Trunk  Ry.  Co.,  142 
;  U.  S.  217;  Nishimura  Ekin  v.  U.  S.,  142  U.  S.  651;  Pacific  Ex.  Co.  v. 
Seibert,  142  U.  S.  339;  Horn  Silver  Mining  Co.  v.  New  York,  143  U.  S. 
305;  Chic.  &  Grand  Trunk  Ry.  Co.  v,  Wellman,  143  U.  S.  339;  Budd  v. 
N.  Y.,  143  U.  S.  517;  Ficklen  v.  Shelby  Co.  Taxing  Dist.,  145  U.  S.  i; 
Lehigh  Valley  R.  Rd.  v.  Pennsylvania,  145  U.  S.  192; Interstate  Com- 
merce Comm'n  v.  B.  &  O.  R.  Rd.,  145  U.  S.  264;  Brennan  v.  Titusville, 
153  U.  S.  289;  Brass  v.  Stoeser,  153  U.  S.  391;  Ashley  v.  Ryan,  153 
U.  S.  436;  Luxton  ».  N.  River  Bridge  Co.,  153  U.  S.  529;  Erie  R.  Rd. 
».  Pennsylvania,  153  U.  S.  628;  Postal  Tel.  Cable  Co.  v.  Charleston,  153 
U.  S.  692;  Covington  &  Cinc'ti  Bridge  Co.  v.  Ky.,  154  U.  S.  204;  Plum- 
ley  v.  Mass.,  155  U.  S.  461 ;  Texas  &  Pacific  Rwy.  Co.  v.  Interstate  Trans- 
fer Co.,  155  U.  S.  585;  Hooper  v.  Calif.,  155  U.  S.  648;  Postal  Tel.  Cable 
Co.  v.  Adams,  155  U.  S.  688;  U.  S.  v.  E.  C.  Knight  Co.,  156  U.  S.  i; 
Emert  v.  Missouri,  156  U.  S.  296;  N.  Y.,  L.  E.  &  West'n  v.  Penna., 
158  U.  S.  431 ;  Pittsburgh  &  So.  Coal  Co.  ».  Bates,  156  U.  S.  577;  Pitts- 
burgh &  So.  Coal  Co.  v.  La.,  156  U.  S.  590;  Gulf,  Colo.  &  S.  F.  Rwy.  Co. 
v.  Hefley,  158  U.  S.  98;  In  re  Debs,  158  U.  S.  564;  Geer  v.  Conn.,  161 
U.  S.  519;  Western  Union  Telegraph  Co.  v.  James,  162  U.  S.  650;  West- 
ern Union  Telegraph  Co.  v.  Taggart,  163  U.  S.  i;  Illinois  Cent.  R.  R. 
Co.,  v.  Illinois,  163  U.  S.  142;  Hennington  v.  Georgia,  163  U.  S.  299; 
Osborne  v.  Florida,  164  U.  S.  650;  Scott  v.  Donald,  165  U.  S.  58;  Adams 
Ex.  Co.  v.  Ohio,  165  U.  S.  194;  New  York,  &c.,  R.  R.  Co.  v.  New  York, 
165  U.  S.  628;  Gladson  v.  Minn.,  166  U.  S.  427;  Chicago,  &c.,  Ry.  Co. 
v.  Solan,  169  U.  S.  133;  Missouri,  &c.,  Ry.  Co.  v.  Haber,  169  U.  S.  613; 
Richmond,  &c.,  R.  R.  Co.  v.  Patterson,  169  U.  S.  311;  Rhodes  v.  Iowa, 
170  U.  S.  412;  Vance  r.  Vandercook,  170  U.  S.  438;  Schollenberger  v. 
Pa.,  171  U.  S.  i ;  Collins  v.  N.  H.,  171  U.  S.  30;  Patapsco  Guano  Co.  v. 
N.  C.,  171  U.  S.  345;  New  York  v.  Roberts,  171  U.  S.  658;  Lake  Shore, 


APPENDIX  617 

&c.,  Ry.  Co.  v.  Ohio,  173  U.  S.  285;  Nicol  v.  Ames,  173  U.  S.  509;  Mis-      APPENDIX 
souri,  &c.,  Ry.  Co.  v.  McCann,  174  U.  S.  580;  Addyston  Pipe  &  Steel  XX 

Co.  v.  U.  S.,  175  U.  S.  21 1 ;  Lindsay  &  Phelps  Co.  v.  Mullen,  176 
U.  S.  126;  Williams  v.  Fears,  179  U.  S.  270;  Wisconsin,  &c.,  R.  R.  Co.  v. 
Jacobson,  179  U.  S.  287;  Chesapeake,  &c.,  Ry.  Co.  v.  Kentucky,  179 
U.  S.  388;  Scranton  v.  Wheeler,  179  U.  S.  141;  Reymann  Brewing  Co. 
v.  Brister,  179  U.  S.  445;  W.  W.  Cargill  Co.  v.  Minnesota,  180  U.  S. 
452;  Rasmussenz;.  Idaho,  181  U.  S.  198;  Smith  v.  St.  Louis  &  South- 
western Railroad  Co.,  181  U.  S.  248;  Capital  City  Dairy  Co.  v.  Ohio, 
183  U.  S.  238;  Louisville  &  Nashville  Railroad  Co.  v.  Kentucky,  183 
U.  S.  503;  Nutting  v.  Massachusetts,  183  U.  S.  553;  McChord  v.  Louis- 
ville &  Nashville  Railroad  Co.,  183  U.  S.  483;  Louisville  &  Nashville 
Railroad  Co.  v.  Eubank,  184  U.  S.  27;  Stockard  v.  Morgan,  185  U.  S. 
27;  Minneapolis  &  St.  Louis  R.  R.  Co.  v.  Minnesota,  186  U.  S.  257; 
Reid  v.  Colorado,  187  U.  S.  137;  Western  Union  Tel.  Co.  v.  New  Hope, 
187  U.  S.  419;  Diamond  Glue  Co.  v.  United  States  Glue  Co.,  187  U.  S. 
611;  Louisville,  etc.,  Ferry  Co.  v.  Kentucky,  188  U.  S.  385;  United 
States  v.  Lynah,  188  U.  S.  445;  Cummings  v.  Chicago,  188  U.  S.  410; 
The  Roanoke,  189  U.  S.  185;  Montgomery  v.  Portland,  190  U.  S.  89; 
Patterson  v.  Bark  Eudora,  190  U.  S.  169;  Allen  v.  Pullman  Co.,  191 
U.  S.  171;  Pennsylvania  R.  R.  Co.  v.  Knight,  192  U.  S.  21;  Postal  Tele- 
graph Cable  Co.  v.  Taylor,  192  U.  S.  64;  Grossman  v.  Lurman,  192 
U.  S.  189;  St.  Clair  County  v.  Interstate  Transfer  Co.,  192  U.  S.  454; 
Buttfield  v.  Stranahan,  192  U.  S.  470;  American  Steel  &  Wire  Co.  v. 
Speed,  192  U.  S.  500;  Northern  Securities  Co.  v.  United  States,  193  U.  S. 
197;  Montague  &  Co.  v.  Lowry,  193  U.  S.  38;  Field  v.  Barber  Asphalt 
Co.,  194  U.  S.  618;  Minnesota  v.  Northern  Securities  Co.  194  U.  S.  48; 
Olsen  v.  Smith,  195  U.  S.  332;  Western  Union  Telegraph  Co.  v.  Penn- 
sylvania R.  R.,  195  U.  S.  540;  Central  of  Georgia  Railway  Co.  v.  Mur- 
phey,  196 U.S.  194;  American  Express  Co. v.  Iowa,  196 U.S.  133;  Cook 
v.  Marshall  County,  196  U.  S.  261;  Matter  of  Heff  (Indian),  197  U.  S. 
488;  Foppiano  v.  Speed,  199  U.  S.  501;  Houston  &  Texas  Central  Rail- 
road ».  Mayes,  201  U.  S.  321;  McLean  v.  Denver  &  Rio  Grande  R.  R., 
203  U.  S.  38;  Rearick  v.  Pennsylvania,  203  U.  S.  507;  Mississippi  R. 
R.  Comm.  v.  Illinois  Central  R.  R.,  203  U.  S.  335;  Martin  v.  Pittsburg& 
Lake  Erie  R.  R.,  203  U.  S.  284;  Hatch  v.  Reardon,  204  U.  S.  152;  Wilson 
v.  Shaw,  204  U.  S.  24;  Union  Bridge  Co.  v.  U.  S.,  204  U.  S.  364;  Lee  v. 
New  Jersey,  207  U.  S.  67;  Atlantic  Coast  Line  v.  Wharton,  207  U.  S. 
328;  Employers'  Liability  Cases,  207  U.  S.  463;  Dick  v.  U.  S.,  208 
U.  S.  340;  Darnell  &  Son  v.  Memphis,  208  U.  S.  113;  Adair  v.  U.  S., 

208  U.  S.  161;  Burke  v.  Wells,  208  U.  S.  14;  General  Oil  Co.  v.  Grain, 

209  U.  S.  21 1 ;  Ware  &  Leland  v.  Mobile  County,  209  U.  S.  405;  Asbell 
v.  Kansas,  209  U.  S.  251;  Galveston,  Harrisburg,  etc.,  Railway  Co.  r. 
Texas,  210  U.  S.  217;  United  States  ex  rel.  Atty.  Gen.  v.  Delaware  &  H. 
Co.,  213  U.  S.  366;  Oceanic  Steam  Nav.  Co.  v.  Stranahan,  214  U.  S.  320; 
International  Mercantile  Marine  Co.  v.  Stranahan,  214  U.  S.  344;  Inter- 
state Com.  Commission  v.  Illinois  C.  R.  Co.,  215  U.  S.  452;  Interstate 
Com.  Commission  v.  Chicago  &  A.  R.  Co.,  215  U.  S.  479;  Mononga- 
hela  Bridge  Co.  v.  United  States,  216  U.  S.  177. 

To  establish  an  uniform  Rule  of  Naturalization,  and  uniform  Laws 
on  the  subject  of  Bankruptcies  throughout  the  United  States; 

Sturges  v.  Crowinshield,  4  Wh.  122;  McMillan  v.  McNeil,  4  Wh. 


618  APPENDIX 

APPENDIX  209;  Farmers'  and  Mechanics'  Bank,  Pennsylvania,  v.  Smith,  6  Wh. 

XX  131;  Ogden  v.  Saunders,  12  Wh.  213;   Boyle  v.  Zacharie  and  Turner, 

6  Pet.  348;  Gassies  v.  Ballon,  6  Pet.  761 ;  Beers  et  al.  v.  Haughton,  9  Pet. 
329;  Suydam  et  al.  v.  Broadnax,  14  Pet.  67;  Cook  v.  Moffat  et  al.,  5 
How.  295;  Dred  Scott  v.  Sandford,  19  How.  393;  Nishimura  Ekiu  v. 
The  United  States,  142  U.  S.  651;  Hanover  National  Bank  v.  Moyses, 
186  U.  S.  181. 

To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign  Coin,  and 
fix  the  Standard  of  Weights  and  Measures; 

Briscoe  v.  The  Bank  of  the  Commonwealth  of  Kentucky,  II  Pet. 
257;  Fox  v.  The  State  of  Ohio,  5  How.  410;  United  States  v.  Marigold, 
9  How.  560. 

To  provide  for  the  Punishment  of  counterfeiting  the  Securities  and 
current  Coin  of  the  United  States; 

Fox  v.  The  State  of  Ohio,  5  How.  410;  United  States  v.  Marigold, 
9  How.  560. 

To  establish  Post  Offices  and  post  Roads ; 

State  of  Pennsylvania  v.  The  Wheeling  and  Belmont  Bridge  Com- 
pany, 18  How.  421;  Horner  v.  United  States,  143  U.  S.  207;  In  re  Ra- 
pier, 143  U.  S.  no;  In  re  Debs,  158  U.  S.  564;  Illinois  Central  Rail- 
road Co.  v.  Illinois,  163  U.  S.  142;  Gladson  v.  Minnesota,  166  U.  S. 
427;  Public  Clearing  House  v.  Coyne,  194  U.  S.  497;  Western  Union 
Telegraph  Co.  v.  Pennsylvania  R.  R.  Co.,  195  U.  S.  540;  Martin  v 
Pittsburg  &  Lake  Erie  R.  R.,  203  U.  S.  284. 

To  promote  the  Progress  of  Science  and  useful  Arts,  by  securing  for 
limited  Times  to  Authors  and  Inventors  the  exclusive  Right  to  their 
respective  Writings  and  Discoveries; 

Grant  et  al.  v.  Raymond,  6  Pet.  218;  Wheaton  et  als.  v.  Peters  et  al., 
8  Pet.  591;  Trade- mark  Cases,  100  U.  S.  82;  Burrow  Giles  Litho- 
graphic Co.  v.  Sarony,  in  U.  S.  53;  United  States  v.  Duell,  172  U.  S. 
576;  Bobbs-Merrill  Co.  v.  Straus,  210  U.  S.  339. 

To  constitute  Tribunals  inferior  to  the  supreme  Court; 
To  define  and  punish  Piracies  and  Felonies  committed  on  the  high 
Seas,  and  Offenses  against  the  Law  of  Nations; 

United  States  v.  Palmer,  3  Wh.  610;  United  States  v.  Wiltberger,  5 
Wh.  76;  United  States  v.  Smith,  5  Wh.  153;  United  States  v.  Pirates, 
5  Wh.  184;  United  States  v.  Arjona,  120  U.  S.  479. 

To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and  make 
Rules  concerning  Captures  on  Land  and  Water; 

Brown  v.  United  States,  8  Cr.  no;  American  Insurance  Company 
et  al.  v.  Canter  (356  bales  cotton),  I  Pet.  511;  Mrs.  Alexander's  Cotton, 
2  Wall.  404;  Miller  v.  United  States,  n  Wall.  268;  Tyler  p.  Defrees,  II 
Wall.  331;  Stewart  v.  Kahn,  n  Wall.  493;  Hamilton  v.  Dillin,  21  Wall. 
73;  Lamar,  ex.,  i>.  Browne  et  al.,  92  U.  S.  187;  Mayfield  ».  Richards, 
115  U.  S.  137;  The  Chinese  Exclusion  Cases,  130  U.  S.  581;  Mormon 
Church  v.  United  States,  136  U.  S.  I ;  Nishimura  Ekiu  v.  United  States, 
142  U.  S.  651. 


APPENDIX  619 

To  raise  and  support  Armies,  but  no  Appropriation  of  Money  to  that     APPENDIX 
Use  shall  be  for  a  longer  Term  than  two  Years;  XX 

Crandall  v.  State  of  Nevada,  6  Wall.  35;  Nishimura  Ekiu  v.  United 
States,  142  U.  S.  651. 

To  provide  and  maintain  a  Navy; 

United  States  v.  Bevans,  3  Wh.  336;  Dynes  v.  Hoover,  20  How.  65. 

To  make  Rules  for  the  Government  and  Regulation  of  the  land  and 
naval  Forces; 

To  provide  for  calling  forth  the  Militia  to  execute  the  Laws  of  the 
Union,  suppress  Insurrections  and  repel  Invasions; 

Houston  v.  Moore,  5  Wh.  i;  Martin  v.  Mott,  12  Wh.  19;  Luther  r. 
Borden,  7  How.  i;  Crandall  v.  State  of  Nevada,  6  Wall.  35;  Texas  v. 
White,  7  Wall.  700. 

To  provide  for  organizing,  arming,  and  disciplining  the  Militia,  and 
for  governing  such  Part  of  them  as  may  be  employed  in  the  Service  of 
the  United  States,  reserving  to  the  States  respectively,  the  Appoint- 
ment of  the  Officers,  and  the  Authority  of  training  the  Militia  according 
to  the  discipline  prescribed  by  Congress ; 

Houston  v.  Moore,  5  Wh.  i;  Martin  v.  Mott,  12  Wh.  19;  Luther  v. 
Borden,  7  How.  i;  Presser  v.  Illinois,  116  U.  S.  252. 

To  exercise  exclusive  Legislation  in  all  Cases  whatsoever,  over  such 
District  (not  exceeding  ten  Miles  square)  as  may,  by  Cession  of  par- 
ticular States,  and  the  Acceptance  of  Congress,  become  the  Seat  of  the 
Government  of  the  United  States,  and  to  exercise  like  Authority  over  all 
Places  purchased  by  the  Consent  of  the  Legislature  of  the  State  in 
which  the  Same  shall  be,  for  the  Erection  of  Forts,  Magazines,  Arsenals, 
dock- Yards,  and  other  needful  Buildings;  —  And 

Hepburn  et  al.  v.  Ellzey,  2  Cr.  444;  Loughborough  v.  Blake,  5  Wh. 
317;  Cohens  v.  Virginia,  6  Wh.  264;  American  Insurance  Company  v. 
Canter  (356  bales  cotton),  i  Pet.  511;  Kendall,  Postmaster-General,  v. 
The  United  States,  12  Pet.  524;  United  States  v.  Dewitt,  9  Wall.  41; 
Dunphy  v.  Kleinschmidt  et  al.,  1 1  Wall.  610;  Willard  v.  Presbury,  14  Wall 
676;  Kohl  et  al.  v.  United  States,  91  U.  S.  367;  Phillips  v.  Payne,  92 
U.  S.  130;  United  States  v.  Fox,  94  U.  S.  315;  National  Bank  v.  Yank- 
ton  County,  101  U.  S.  129;  Ft.  Leavenworth  R.  Rd.  Co.  v.  Howe,  114 
U.  S.  525;  Benson  v.  United  States,  146  U.  S.  325;  Shoemaker  v.  United 
States,  147  U.  S.  282;  Chappell  v.  United  States,  160  U.  S.  499;  Ohio  v. 
Thomas,  173  U.  S.  276;  Wight  v.  Davidson,  181  U.  S.  371;  Battle  v. 
United  States,  209  U.  S.  36. 

To  make  all  Laws  which  shall  be  necessary  and  proper  for  carrying 
into  Execution  the  foregoing  Powers,  and  all  other  Powers  vested  by 
this  Constitution  in  the  Government  of  the  United  States,  or  in  any 
Department  or  Officer  thereof. 

McCulloch  v.  The  State  of  Maryland,  4  Wh.  316;  Wayman  v.  South- 
ard, 10  Wh,  i ;  Bank  of  United  States  v.  Halstead,  10  Wh.  51 ;  Hepburn 


620  APPENDIX 

APPENDIX  "•  Griswold,  8  Wall.  603;  National  Bank  v.  Commonwealth,  9  Wall. 

XX  3535  Thomson  v.  Pacific  Railroad,  9  Wall.  579;  Parker  v.  Davis,  12 

Wall.  457;  Railroad  Company  v.  Johnson,  i5,Wall.  195;  Railroad  Com- 
pany f.  Peniston,  18  Wall.  5;  Legal  Tender  Case,  no  U.  S.  421;  In  re 
Coy,  127  U.  S.  731;  Stoutenburgh  v.  Hennick,  129  U.  S.  141;  Chinese 
Ex.  Case,  130  U.  S.  581;  In  re  Neagle,  135  U.  S.  i;  St.  Paul,  Minnea- 
polis &  Manitoba  Ry.  Co.  v.  Phelps,  137  U.  S.  528;  Hornerz>.  United 
States,  143  U.  S.  570;  Logan  v.  United  States,  144  U.  S.  263;  Fong 
Yue  Ting  v.  United  States,  149  U.  S.  698;  Lees  v.  United  States,  150 
U.  S.  476;  Luxton  v.  North  River  Bridge  Co.,  153  U.  S.  529;  Erie  R. 
Rd.  v.  Pennsylvania,  153  U.  S.  628;  Postal  Tel.  Cable  Co.  v.  Charles- 
ton, 153  U.  S.  692;  Clune  v.  United  States,  159  U.  S.  590;  Motes 
t>.  United  States,  178  U.  S.  458;  Buttfield  v.  Stranahan,  192  U.  S.  470. 

SECTION  9.  The  Migration  or  Importation  of  such  Persons  as  any  of 
the  States  now  existing  shall  think  proper  to  admit,  shall  not  be  pro- 
hibited by  the  Congress  prior  to  the  Year  one  thousand  eight  hundred 
and  eight,  but  a  Tax  or  duty  may  be  imposed  on  such  Importation,  not 
exceeding  ten  dollars  for  each  Person. 

Dred  Scott  v.  Sandford,  19  How.  393. 

The  privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  suspended, 
unless  when  in  Cases  of  Rebellion  or  Invasion  the  public  Safety  may 
require  it. 

United  States  v.  Hamilton,  3  Dall.  17;  Hepburn  et  al.  v.  Ellzey,  2 
Cr.  445 ;  Ex  parte  Bollman  and  Swartwout,  4  Cr.  75 ;  Ex  parte  Kearney, 

7  Wh.  38;  Ex  parte  Tobias  Watkins,  3  Pet.  192;  Ex  parte  Milburn,  9 
Pet.  704;  Holmes  v.  Jennison  et  al.,  14  Pet.  540;  Ex  parte  Dorr,  3  How. 
103;  Luther  v.  Borden,  7  How.  I ;  Ableman  v.  Booth  and  United  States 
v.  Booth,  21  How.  506;  Ex  parte  Vallandigham,  I  Wall.  243;  Ex  parte 
Milligan,  4  Wall.  2;  Ex  parte  McCardle,  7  Wall.  506;  Ex  parte  Yerger, 

8  Wall.  85;  Tarble's  Case,  13  Wall.  397;  Ex  parte  Lange,  18  Wall.  163; 
Ex  parte  Parks,  93  U.  S.  18;  Ex  parte  Karstendick,  93  U.  S.  396;  Ex 
parte  Virginia,  100  U.  S.  339;  In  re  Neagle,  135  U.  S.  i;  In  re  Duncan, 
139  U.  S.  449;  In  re  Frederick,  149  U.  S.  70;  United  States  v.  Sing  Tuck, 
194  U.  S.  161;  United  States  v.  Ju  Toy,  198  U.  S.  253;  Carfer  v.  Cald- 
well,  200  U.  S.  293;  McNichols  v.  Pease,  207  U.  S.  100. 

No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

Fletcher  v.  Peck,  6  Cr.  87;  Ogden  v.  Saunders,  12  Wh.  213;  Watson 
et  al.  P.  Mercer,  8  Pet.  88;  Carpenter  et  al.  v.  Commonwealth  of  Penn- 
sylvania, 17  How.  456;  Locke  v.  New  Orleans,  4  Wall.  172;  Cummings 
t>.  The  State  of  Missouri,  4  Wall.  277;  Ex  parte  Garland,  4  Wall.  333; 
Drehman  v.  Stifle,  8  Wall.  595;  Klinger  v.  State  of  Missouri,  13  Wall. 
257;  Pierce  ».  Carskadon,  16  Wall.  234;  Holden  v.  Minnesota,  137  U.  S. 
483;  Cook  v.  United  States,  138  U.  S.  157;  Neely  v.  Henkel  (No.  i), 
1 80  U.  S.  109;  Southwestern  Coal  Co.  v.  McBride,  185  U.  S.  499; 
Delamater  v.  South  Dakota,  205  U.  S.  93. 

No  Capitation,  or  other  direct,  Tax  shall  be  laid,  unless  in  Proportion 
to  the  Census  or  Enumeration  herein  before  directed  to  be  taken. 

License  Tax  Cases,  5  Wall.  462;  Springer  v.  United   States,  102 


APPENDIX  621 

U.  S.  586;  Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429;  Nichols      APPENDIX 
v.  Ames,  173  U.  S.  509;  South  Carolina  v.  United  States,  199  U.  S.  437.  XX 

No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any  State. 

Cooley  v.  Board  of  Wardens  of  Port  of  Philadelphia,  12  How.  299; 
Pace  v.  Burgess,  collector,  92  U.  S.  372;  Turpin  v.  Burgess,  117  U.  S. 
504;  Pittsburgh  &  Southern  Coal  Co.  v.  Bates,  156  U.  S.  577;  Nichols 
v.  Ames,  173  U.  S.  509;  Williams  v.  Fears,  179  U.  S.  270;  De  Lima  v. 
Bidwell,  182  U.  S.  i;  Dooley  v.  United  States,  183  U.  S.  151;  Fourteen 
Diamond  Rings  v.  United  States,  183  U.  S.  176;  Cornell  v.  Coyne,  192 
U.  S.  418;  South  Carolina  v.  United  States,  199  U.  S.  437;  Armour 
Packing  Co.  v.  United  States,  209  U.  S.  56. 

No  Preference  shall  be  given  by  any  Regulation  of  Commerce  or 
Revenue  to  the  Ports  of  one  State  over  those  of  another:  nor  shall  Ves- 
sels bound  to,  or  from,  one  State,  be  obliged  to  enter,  clear,  or  pay 
Duties  in  another. 

Cooley  v.  Board  of  Wardens  of  Port  of  Philadelphia  et  al.,  12  How. 
299 ;  State  of  Pennsylvania  v.  Wheeling  and  Belmont  Bridge  Company 
et  al.,  18  How.  421;  Munn  v.  Illinois,  94  U.  S.  113;  Packet  Co.  v.  St. 
Louis,  100  U.  S.  423;  Packet  Co.  v.  Catlettsburg,  105  U.  S.  559;  Mor- 
gan S.  S.  Co.  v.  La.  Board  of  Health,  118  U.  S.  455;  Johnson  v.  Chicago 
&  Pacific  Elevator  Co.,  119  U.  S.  388;  South  Carolina  v.  United  States, 
199  U.  S.  437;  Armour  Packing  Co.  v.  United  States,  209  U.  S.  56. 

No  Money  shall  be  drawn  from  the  Treasury,  but  in  Consequence  of 
Appropriations  made  by  Law ;  and  a  regular  Statement  and  Account  of 
the  Receipts  and  Expenditures  of  all  public  Money  shall  be  published 
from  time  to  time. 

No  Title  of  Nobility  shall  be  granted  by  the  United  States:  And  no 
Person  holding  any  Office  of  Profit  or  Trust  under  them,  shall,  without 
the  Consent  of  the  Congress,  accept  of  any  present,  Emolument,  Office, 
or  Title,  of  any  kind  whatever,  from  any  King,  Prince,  or  foreign  State. 

SECTION  10.  No  State  shall  enter  into  any  Treaty,  Alliance,  or  Con- 
federation; grant  Letters  of  Marque  and  Reprisal;  coin  Money;  emit 
Bills  of  Credit;  make  any  Thing  but  gold  and  silver  Coin  a  Tender  in 
Payment  of  Debts;  pass  any  Bill  of  Attainder,  ex  post  facto  Law,  or 
Law  impairing  the  Obligation  of  Contracts,  or  grant  any  Title  of  No- 
bility. 

Calder  and  Wife  v.  Bull  and  Wife,  3  Dall.  386;  Fletcher  v.  Peck,  6 
Cr.  87;  State  of  New  Jersey  v.  Wilson,  7  Cr.  164;  Sturgis  v.  Crownin- 
shield,  4  Wh.  122;  McMillan  v.  McNeil,  4  Wh.  209;  Dartmouth  Col- 
lege v.  Woodward,  4  Wh.  518;  Owings  v.  Speed,  5  Wh.  420;  Farmers' 
and  Mechanics'  Bank  v.  Smith,  6  Wh.  131;  Green  et  al.  v.  Biddle, 
8  Wh.  i;  Ogden  v.  Saunders,  12  Wh.  213;  Mason  v.  Haile,  12  Wh.  370; 
Satterlee  v.  Matthewson,  2  Pet.  380;  Hart  v.  Lamphire,  3  Pet.  280; 
Craig  et  al.  v.  State  of  Missouri,  4  Pet.  410;  Providence  Bank  v.  Bil- 
lings and  Pitman,  4  Pet.  514;  Byrne  v.  State  of  Missouri,  8  Pet.  40; 
Watson  v.  Mercer,  8  Pet.  88;  Mumma  v.  Potomac  Company,  8  Pet. 
281;  Beers  v.  Haughton,  9  Pet.  329;  Briscoe  et  al.  v.  The  Bank  of  the 
Commonwealth  of  Kentucky,  II  Pet.  257;  The  Proprietors  of  Charles 


622  APPENDIX 

APPENDIX  River  Bridge  v.  The  Proprietors  of  Warren  Bridge,  n  Pet.  420;  Arm- 

XX  strong  v.  The  Treasurer  of  Athens  Company,  16  Pet.  281;  Bronsonr. 

Kinzie  et  al.,  I  How.  311;  McCracken  v.  Hay  ward,  2  How.  608;  Gordon 
v.  Appeal  Tax  Court,  3  How.  133;  State  of  Maryland  v.  Baltimore  and 
Ohio  R.  R.  Co.,  3  How.  534;  Neil,  Moore  &  Co.  v.  State  of  Ohio,  3  How. 
720;  Cook  v.  Moffatt,  5  How.  295;  Planters'  Bank  v.  Sharp  et  al.,  6 
How.  301;  West  River  Bridge  Company  v.  Dix  et  al.,  6  How.  507; 
Crawford  et  al.  ».  Branch  Bank  of  Mobile,  7  How.  279;  Woodruff  r. 
Trapnall,  10  How.  190;  Paup  et  al.  v.  Drew,  loHow.  218;  Baltimore 
and  Susquehanna  R.  R.  Co.  v.  Nesbitt  et  al.,  10  How.  395;  Butler  et  al. 
v.  Pennsylvania,  10  How.  402 ;  Darrington  et  al.  v.  The  Bank  of  Alabama, 
13  How.  12;  Richmond,  etc.,  R.  R.  Co.  v.  The  Louise  R.  R.  Co.,  13 
How.  71;  Trustees  for  Vincennes  University  v.  State  of  Indiana,  14 
How.  268;  Curran  v.  State  of  Arkansas  et  al.,  15  How.  304;  State  Bank 
of  Ohio  v.  Knoop,  16  How.  369;  Carpenter  et  al.  v.  Commonwealth  of 
Pennsylvania,  17  How.  456;  Dodge  v.  Woolsey,  18  How.  331;  Beers 
v.  State  of  Arkansas,  20  How.  527;  Aspinwall  et  al.  v.  Commissioners  of 
County  of  Daviess,  22  How.  364;  Rector  of  Christ  Church,  Philadel- 
phia v.  County  of  Philadelphia,  24  How.  300;  Howard  v.  Bugbee,  24 
How.  461;  Jefferson  Branch  Bank  v.  Skelley,  I  Black,  436;  Franklin 
Branch  Bank  v.  State  of  Ohio,  I  Black,  474;  Trustees  of  the  Wabash 
and  Erie  Canal  Company  v.  Beers,  2  Black,  448;  Gilman  v.  City  of 
Sheboygan,  2  Black,  510;  Bridge  Proprietors  v.  Hoboken  Company, 
i  Wall.  116;  Hawthorne  v.  Calef,  2  Wall.  10;  The  Binghamton  Bridge, 

3  Wall.  51 ;  The  Turnpike  Company  i>.  The  State,  3  Wall.  210;  Locke  v. 
City  of  New  Orleans,  4  Wall.  172;  Railroad  Company  v.  Rock,  4  Wall. 
177;  Cummings  ».  State  of  Missouri,  4  Wall.  277;  Ex  parte  Garland, 

4  Wall.  333;  Von  Hoffman  v.  City  of  Quincy,  4  Wall.  535;  Mulligan  v. 
Corbin,  7  Wall.  487 ;  Furman  v.  Nichol,  8  Wall.  44;  Home  of  the  Friend- 
less v.  Rouse,  8  Wall.  430;  The  Washington  University  v.  Rouse,  8 
Wall.  439;  Butz  v.  City  of  Muscatine,  8  Wall.  575;  Drehman  v.  Stifle, 
8  Wall.  595;  Hepburn  v.  Griswold,  8  Wall.  603;  Gut  v.  The  State,  9 

•  Wall.  35;  Railroad  Company  v.  McClure,  10  Wall.  511 ;  Parker  v.  Davis, 
12  Wall.  457;  Curtis  v.  Whitney,  13  Wall.  68;  Pennsylvania  College 
Cases,  13  Wall.  190;  Wilmington  R.  R.  v.  Reid,  sheriff,  13  Wall.  264; 
Salt  Company  v.  East  Saginaw,  13  Wall.  373;  White  v.  Hart,  13  Wall. 
646;  Osborn  v.  Nicholson  et  al.,  13  Wall.  654;  Railroad  Company  v. 
Johnson,  15  Wall.  195;  Case  of  the  State  Tax  on  Foreign-held  Bonds, 
15  Wall.  300;  Tomlinson  v.  Jessup,  15  Wall.  454;  Tomlinson  v.  Branch, 
15  Wall.  460;  Miller  v.  The  State,  15  Wall.  478;  Holyoke  Company 
v.  Lyman,  15  Wall.  500;  Gunn  v.  Barry,  15  Wall.  610;  Humphrey  v. 
Pegues,  16  Wall.  244;  Walker  v.  Whitehead,  16  Wall.  314;  Sohn  v. 
Waterson,  17  Wall.  596;  Baring  v.  Dabney,  19  Wall,  i;  Head  v.  The 
University,  19  Wall.  526;  Pacific  R.  R.  Co.  v.  Maguire,  20  Wall.  36; 
Garrison  v.  The  City  of  New  York,  21  Wall.  196;  Ochiltree  v.  The  Rail- 
road Company,  21  Wall.  249;  Wilmington,  &c.,  Railroad  v.  King,  ex., 

91  U.  S.  3;  County  of  Moultrie  v.  Rockingham  Ten  Cent  Savings  Bank, 

92  U.  S.  631;  Home  Insurance  Company  v.  City  Council  of  Augusta, 

93  U.  S.  116;  West  Wisconsin  R.  R.  Co.  v.  Supervisors,  93  U.  S.  595; 
Murray  v.  Charleston,  96  U.  S.  432;  Edwards  v.  Kearzey,  96  U.  S.  595; 
Keith  v.  Clark,  97  U.  S.  454;  Railroad  Co.  v.  Georgia,  98  U.  S.  359; 
Railroad  Co.  v.  Tennessee,  101  U.  S.  337;  Wright  v.  Nagle,  101  U.  S. 
791;  Stone  v.  Mississippi,  101  U.  S.  814;  Railroad  Co.  v.  Alabama,  101 


APPENDIX  623 

U.  S.  832;  Louisiana  v.  New  Orleans,  102  U.  S.  203;  Hall  v.  Wisconsin,  APPENDIX 
103  U.  S.  5;  Penniman's  Case,  103  U.  S.  714;  Guaranty  Co.  v.  Board  of  XX 
Liquidation,  105  U.  S.  622;  Greenwood  v.  Freight  Co.,  105  U.  S.  13; 
Kring  v.  Missouri,  107  U.  S.  221;  Louisiana  v.  New  Orleans,  109  U.  S. 
285;  Gilfillan  v.  Union  Canal  Co.,  109  U.  S.  401;  Nelson  v.  St.  Martin's 
Parish,  in  U.  S.  716;  Chic.  Life  Ins.  Co.  v.  Needles,  113  U.  S.  574; 
Virginia  Coupon  Cases,  114  U.  S.  269;  Allen,  Auditor,  et  al.  v.  Balti- 
more &  Ohio  R.  R.  Co.,  114  U.  S.  311;  Amy  v.  Shelby  Co.,  114  U.  S. 
387;  Effinger  v.  Kenney,  115  U.  S.  566;  N.  Orleans  Gas  Co.  v.  La.  Light 
Co.,  115  U.  S.  650;  N.  Orleans  Water  Works  v.  Rivers,  115  U.  S.  674; 
Louisville  Gas  Co.  v.  Citizens'  Gas  Co.,  115  U.  S.  683;  Fisk  v.  Jefferson 
Police  Jury,  116  U.  S.  131 ;  Stone  v.  Farmers'  Loan  and  Trust  Co.,  116 
U.  S.  307;  Stone  v.  111.  Central  R.  R.  Co.,  116  U.  S.  347;  Royall  v.  Vir- 
ginia, 116  U.  S.  572;  St.  Tammany  Water  Works  v.  N.  Orleans  Water 
Works,  120  U.  S.  64;  Church  v.  Kelsey,  121  U.  S.  282 ;  Lehigh  Water  Co. 
v.  Easton,  121  U.  S.  388;  Seibert  v.  Lewis,  122  U.  S.  284;  N.  Orleans 
Water  Works  v.  La.  Sugar  Ref.  Co.,  125  U.  S.  18;  Maynard  v.  Hill,  125 
U.  S.  140;  Jaehne  v.  N.  Y.,  128  U.  S.  189;  Denny  v.  Bennett,  128  U.  S.  4891 
Chinese  Ex.  Case,  130  U.  S.  588;  Williamson  v.  N.  J.,  130  U.  S.  189; 
Hunt  v.  Hunt,  131  U.S.clxv;  Freeland  v.  Williams,  131  U.  S.  405;  Camp- 
bell v.  Wade,  134  U.  S.  34;  Penna.  R.  Rd.  Co.  v.  Miller,  132  U.  S.  75; 
Hans  v.  Louisiana,  134  U.  S.  I ;  North  Carolina  v.  Temple,  134  U.  S.  22; 
Crenshaw  v.  United  States,  134  U.  S.  99;  Louisiana  ex  rel.  The  N.  Y. 
Guaranty  and  Indemnity  Co.  v.  Steele,  134  U.  S.  280;  Minneapolis 
Eastern  Rwy.  Co.  v.  Minnesota,  134  U.  S.  467;  Hill  v.  Merchants'  Ins. 
Co.,  134  U.  S.  515;  Medley,  petitioner,  134  U.  S.  160;  Cherokee  Nation 
v.  Kansas  Ry.  Co.,  135  U.  S.  641;  Virginia  Coupon  Cases,  135  U.  S. 
662;  Mormon  Church  v.  United  States,  136  U.  S.  i;  Wheeler  v.  Jack- 
son, 137  U.  S.  245;  Holden  v.  Minnesota,  137  U.  S.  483;  Sioux  City 
Street  Railway  Co.  v.  Sioux  City,  138  U.  8.98;  Cook  ».  United  States, 
138  U.  S.  157;  Wheeling  &  Belmont  Br.  Co.  v.  Wheeling  Br.  Co.,  138 
U.  S.  287;  Cook  County  t>.  Calumet  and  Chicago  Canal  Co.,  138 
U.  S.  635;  Pennoyer  v.  McConnaughy,  140  U.  S.  i;  County  Court  v. 
U.  S.  ex  rel.  Hill,  139  U.  S.  41 ;  Scott  v.  Neely,  140  U.  S.  106;  Essex  Pub-  ' 
lie  Road  Board  ».  Shinkle,  140  U.  S.  334;  Stein  v.  Bienville  Water 
Supply  Co.,  141  U.  S.  67;  Henderson  Bridge  Co.  v.  Henderson,  141 
U.  S.  679;  New  Orleans  v.  N.  O.  Water  W'ks,  142  U.  S.  79;  Pacific  Ex. 
Co.  v.  Seibert,  142  U.  S.  339;  N.  O.  City  &  Lake  R.  Rd.  Co.  v.  New  Or- 
leans, 143  U.  S.  192;  Winona  &  St.  Peter  R.  Rd.  Co.  v.  Plainview,  143 
U.  S.  371;  Louisville  Water  Co.  v.  Clark,  143  U.  S.  i;  N.  Y.  v.  Squire, 

145  U.  S.  175;  Brown  v.  Smart,  145  U.  S.  454;  Baker's  Exrs.  r.  Kil- 
gore,  145  U.  S.  487;  Morley  v.  Lake  Shore  &  Mich.  Southern  Ry.  Co., 

146  U.  S.  162;  Wilmington  &  Weldon  R.  Rd.  Co.  v.  Alsbrook,  146 
U.  S.  279;  Butler  v.  Goreley,  146  U.  S.  303;  Ills.  Cent.  R.  Rd.  v.  Ills., 
146  U.  S.  387;  Hamilton  Gas  L't  Co.  v.  Hamilton  City,  146  U.  S. 
258;  Bier  v.  McGehee,  148  U.  S.  137;  Schurz  v.  Cook,  148  U.  S.  3971 
Eustis  v.  Bolles,  150  U.  S.  361;  Duncan  v.  Missouri,  152  U.  S.  377; 
Israel  v.  Arthur,  152  U.  S.  355;  New  Orleans  v.  Benjamin,  153  U.  S. 
411;   Eagle  Ins.  Co.  v.  Ohio,  153  U.  S.  446;  Erie  R.  Rd.  v.  Penna., 
153  U.  S.  628;  Mobile  &  Ohio  R.  Rd.  v.  Tenn.,  153  U.  S.  486;  Pitts- 
burgh &  So.  Coal  Co.  v.  La.,  156  U.  S.  590;  United  States  ex  rel.  Siegel 
v.  Thoman,  156  U.  S.  353;  City  and  Lake  R.  Rd.  v.  N.  O.,  157  U.  S. 
219;  Central  Land  Co.  v.  Laidley,  159  U.  S.  103;  Winona  &  St.  Peter 


624  APPENDIX 

APPENDIX  Land  Co.  v.  Minn.,  159  U.  S.  528;  Bank  of  Commerce  v.  Tenn.,  161 

xx  U.  S.  134;  Baltzer  v.  N.  C.,  161  U.  S.  240;  Woodruff  v.  Miss.,  162 

U.  S.  291;  Gibson  v.  Miss.,  162  U.  S.  565;  Barnitzv.  Beverly,  163  U.  S. 
118;  Hanford  v.  Davies,  163  U.  S.  273;  Covington,  &c.,  Turnpike  Co. 
r.  Sandford,  164  U.  S.  578;  St.  Louis,  &c.,  Ry.  Co.  ».  Mathews,  165 
U.  S.  i ;  Allgeyer  v.  Louisiana,  165  U.  S.  578;  Water  Power  Co.  v.  Water 
Commissioners,  168  U.  S.  349;  Douglas  v.  Kentucky,  168  U.  S.  488; 
Hawker  v.  New  York,  170  U.  S.  189;  Galveston,  &c.,  Ry.  Co.  v.  Texas, 
170  U.  S.  226;  Houston,  &c.,  Ry.  Co.  v.  Texas,  170  U.S.  243;  Williams 
v.  Eggleston,  170  U.  S.  304;  Thompson  v.  Utah,  170  U.  S.  343;  Chicago, 
&c.,  R.  R.  Co.  v.  Nebraska,  170  U.  S.  57;  Thompson  v.  Missouri,  171 
U.  S.  380;  Walla  Walla  v.  Walla  Walla  Water  Co.,  172  U.  S.  I ;  McCol- 
lough  v.  Va.,  172  U.  S.  102;  Covington  v.  Kentucky,  173  U.  S.  231; 
Citizens'  Savings  Bank  v.  Owensboro,  173  U.  S.  636;  Walsh  t».  Columbus, 
&c.,  R.  R.  Co.,  176  U.  S.  469;  Stearns  v.  Minn.,  179  U.  S.  223;  McDonald 
v.  Massachusetts,  180  U.  S.  311;  Mall ett  v.  North  Carolina,  181  U.  S. 
589;  Diamond  Glue  Co.  v.  U.  S.  Glue  Co.,  187  U.  S.  611;  Reetz  v. 
Michigan,  188  U.  S.  505;  Savannah,  Thunderbolt,  &c.  Ry.  v.  Savan- 
nah, 198  U.  S.  392;  Knights  of  Pythias  v.  Meyer,  198  U.  S.  508;  Tampa 
Water  Works  v.  Tampa,  199  U.S.  241;  Manigault  v.  Springs,  199  U.  S. 
473;  Metropolitan  Street  Ry.  Co.  r.  Tax  Comm'rs,  199  U.  S.  i;  Kies  v. 
Lowrey,  199  U.  S.  233;  Graham  v.  Folsom,  200  U.  S.  248;  San  Antonio 
Traction  Co.  v.  Altgelt,  200  U.  S.  304;  Water  Company  v.  Knoxville,  200 
U.  S.  22;  Gunter  v.  Atlantic  Coast  Line,  200  U.  S.  273;  Powers  v.  De- 
troit, &  G.  H.  and  M.  Railway,  201  U.  S.  543;  Cleveland  v.  Cleveland 
Electric  Railway,  201  U.  S.  529;  West  Chicago  Railroad  v.  Chicago,  201 
U.  S.  506;  Blair  v.  Chicago,  201  U.  S.  400;  Devine  v.  Los  Angeles,  202 
U.  S.  313;  Vicksburg  v.  Waterworks  Co.,  202  U.  S.  453;  National  Council 
v.  State  Council,  203  U.  S.  151;  Offield  v.  New  York,  New  Haven  and 
Hartford  R.  R.  Co.,  203  U.  S.  372 ;  American  Smelting  &c.  Co. ».  Colo., 
204  U.  S.  103;  Cleveland  Electric  Railway  Co.  v.  Cleveland,  204  U.  S. 
116;  Rochester  Railway  Co.  v.  Vicksburg  Waterworks  Co.,  206  U.  S. 
496;  Bernheimer  v.  Converse,  206  U.  S.  576;  Sauer  v.  City  of  New  York, 
206  U.  S.  536;  Smith  v.  Jennings,  206  U.  S.  276;  Sullivan  v.  Texas,  207 
U.  S.  416;  Hunter  v.  Pittsburg,  207  U.  S.  161;  Polk  v.  Mutual  Reserve 
Fund  Association,  207  U.  S.  310;  Felton  v.  University  of  the  South, 
208  U.  S.  489;  Northern  Pacific  Railway  v.  Duluth,  208  U.  S.  583; 
Cosmopolitan  Club  v.  Virginia,  208  U.  S.  378;  Hudson  Water  Co.  v. 
McCarter,  209  U.  S.  349;  Yazoo  &  Mississippi  Railroad  Co.  v.  Vicks- 
burg, 209  U.  S.  358;  St.  Louis  v.  United  Railways  Co.,  210  U.  S.  266; 
Waters-Pierce  Oil  Co.  v.  Texas,  212  U.  S.  86;  Hammond  Packing  Co. 
v.  Arkansas,  212  U.  S.  322;  Louisiana  ex  rel.  Hubert  v.  New  Orleans, 

215  U.S.  170;  Henlyu.  Myers,  215  U.  S.  373;  Minneapolis  v.  Minne- 
apolis Street  R.  Co.,  215  U.  S.  417;  Wright  v.  Georgia  R.  &  Bkg.  Co., 

216  U.  S.  420;  Missouri  P.  R.  Co.  v.  Kansas  ex  rel.  Taylor,  216  U.  S. 
262;  Citizens'  Natl.  Bank  v.  Kentucky,  217  U.  S.  443;  Griffith  v.  Con- 
necticut, 218  U.  S.  563;  Calder  v.  Michigan,  218  U.  S.  591;  Arkansas 
S.  R.  Co.  i>.  Louisiana,  218  U.  S.  431;  Moffitt  v.  Kelly,  218  U.  S.  400. 

No  State  shall,  without  the  Consent  of  the  Congress,  lay  any  Imposts 
or  Duties  on  Imports  or  Exports,  except  what  may  be  absolutely  neces- 
sary for  executing  it's  inspection  Laws;  and  the  net  Produce  of  all  Duties 
and  Imposts,  laid  by  any  State  on  Imports  or  Exports,  shall  be  for  the 


APPENDIX  625 

Use  of  the  Treasury  of  the  United  States;  and  all  such  Laws  shall  be     APPENDIX 
subject  to  the  Revision  and  Controul  of  the  Congress.  XX 

McCulloch  v.  State  of  Maryland,  4  Wh.  316;  Gibbons  v.  Ogden, 
9  Wh.  i ;  Brown  v.  The  State  of  Maryland,  12  Wh.  419;  Mager  v.  Grima 
et  al.,  8  How.  490;  Cooley  v.  Board  of  Wardens  of  Port  of  Philadel- 
phia et  al.,  12  How.  299;  Almy  v.  State  of  California,  24  How.  169; 
License  Tax  Cases,  5  Wall.  462;  Crandall  v.  State  of  Nevada,  6  Wall. 
35;  Waring  v.  The  Mayor,  8  Wall,  no;  Woodruff  v.  Perham,  8  Wall. 
123;  Hinson  v.  Lott,  8  Wall.  148;  State  Tonnage  Tax  Cases,  12  Wall. 
204;  State  Tax  on  Railway  Gross  Receipts,  15  Wall.  284;  Inman  Steam- 
ship Company  v.  Tinker,  94  U.  S.  238;  Cook  v.  Pennsylvania,  97  U.  S. 
566;  Packet  Co.  v.  Keokuk,  95  U.  S.  80;  People  v.  Compagnie  Generate 
Transatlantique,  107  U.  S.  59;  Brown  v.  Houston,  114  U.  S.  622;  Pitts- 
burgh &  So.  Coal  Co.  v.  Bates,  156  U.  S.  577;  Pittsburgh  &  So.  Coal 
Co.  v.  La.,  156  U.  S.  590;  Patapsco  Guano  Co.  v.  N.  C.,  171  U.  S.  345; 
May  &  Co.  v.  New  Orleans,  178  U.  S.  496;  Dooley  v.  United  States,  183 
U.  S.  151;  Cornell  ».  Coyne,  192  U.  S.  418;  American  Steel  &  Wire  Co. 
v.  Speed,  192  U.  S.  500;  Delaware,  L.,  &c.,  R.  R.  Co.  v.  Pennsylvania, 
198  U.  S.  341 ;  McLean  v.  Denver  &  Rio  Grande  R.  R.,  203  U.  S.  38. 

No  State  shall,  without  the  Consent  of  Congress,  lay  any  duty  of 
Tonnage,  keep  Troops,  or  Ships  of  War  in  time  of  Peace,  enter  into  any 
Agreement  or  Compact  with  another  State,  or  with  a  foreign  Power,  or 
engage  in  War,  unless  actually  invaded,  or  in  such  imminent  Danger 
as  will  not  admit  of  delay. 

Green  v.  Biddle,  8  Wh.  I ;  Poole  et  al.  v.  The  Lessee  of  Fleeger  et  al., 

11  Pet.  185;  Cooley  v.  Board  of  Wardens  of  Port  of  Philadelphia  etal., 

12  How.  299;  Peete  v.  Morgan,  19  Wall.  581;  Cannon  v.  New  Orleans, 
20  Wall.  577;  Inman  Steamship  Company  v.  Tinker,  94  U.  S.  238; 
Packet  Co.  v.  St.  Louis,  100  U.  S.  423;  Packet  Co.  v.  Keokuk,  95  U.  S. 
80;  Vicksburg  v.  Tob'm,  100  U.  S.  430;  Packet  Co.  v.  Catlettsburg,  105 
U.  S.  559;  Morgan  Steamship  Company  v.  Louisiana  Board  of  Health, 
118  U.  S.  455;  Ouachita  Packet  Co.  v.  Aiken,  121  U.  S.  444;  Huse  v. 
Glover,  119  U.  S.  543;  Harmon  ».  Chicago,  147  U.  S.  396;  Va.  v.  Tenn., 
148  U.  S.  503;  Whartonv.  Wise,  153  U.  S.  155;  St.  Louis  and  San 
Francisco  Ry.  Co.  v.  James,  161  U.  S.  545. 

ARTICLE  II 

SECTION  I.  The  executive  Power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  Office  during  the  Term  of 
four  Years,  and,  together  with  the  Vice-President,  chosen  for  the  same 
Term,  be  elected,  as  follows. 

Field  v.  Clark,  143  U.  S.  649. 

Each  State  shall  appoint,  in  such  Manner  as  the  Legislature  thereof 
may  direct,  a  Number  of  Electors,  equal  to  the  whole  Number  of 
Senators  and  Representatives  to  which  the  State  may  be  entitled  in 
the  Congress:  but  no  Senator  or  Representative  or  Person  holding  an 


626  APPENDIX 

APPENDIX     Office  of  Trust  or  Profit  under  the  United  States,  shall  be  appointed 
XX  an  Elector. 

Chisholm,  ex.,  v.  Georgia,  2  Dall.  419;  Leitensdorfer  et  al.  v.  Webb, 
20  How.  176;  Ex  parte  Siebold,  100  U.  S.  271;  In  re  Green,  134  U.  S. 
377;  McPherson  r.  Blacker,  146  U.  S.  i. 

[The  Electors  shall  meet  in  their  respective  States,  and  vote  by  Ballot 
for  two  persons,  of  whom  one  at  least  shall  not  be  an  Inhabitant  of  the 
same  State  with  themselves.  And  they  shall  make  a  List  of  all  the  Per- 
sons voted  for,  and  of  the  Number  of  Votes  for  each ;  which  List  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  Seat  of  the  Govern- 
ment of  the  United  States,  directed  to  the  President  of  the  Senate.  The 
President  of  the  Senate  shall,  in  the  Presence  of  the  Senate  and  House 
of  Representatives,  open  all  the  Certificates,  and  the  Votes  shall  then 
be  counted.  The  Person  having  the  greatest  Number  of  Votes  shall  be 
the  President,  if  such  Number  be  a  Majority  of  the  whole  Number  of 
Electors  appointed;  and  if  there  be  more  than  one  who  have  such 
Majority,  and  have  an  equal  Number  of  Votes,  then  the  House  of 
Representatives  shall  immediately  chuse  by  Ballot  one  of  them  for 
President;  and  if  no  Person  have  a  Majority,  then  from  the  five  highest 
on  the  List  the  said  House  shall  in  like  Manner  chuse  the  President. 
But  in  chusing  the  President,  the  Votes  shall  be  taken  by  States,  the 
Representation  from  each  State  having  one  Vote;  A  quorum  for  this 
Purpose  shall  consist  of  a  Member  or  Members  from  two  thirds  of  the 
States,  and  a  Majority  of  all  the  States  shall  be  necessary  to  a  Choice. 
In  every  Case,  after  the  Choice  of  the  President,  the  Person  having  the 
greatest  Number  of  Votes  of  the  Electors  shall  be  the  Vice-President. 
But  if  there  should  remain  two  or  more  who  have  equal  Votes,  the 
Senate  shall  chuse  from  them  by  Ballot  the  Vice-President.]1 

The  Congress  may  determine  the  Time  of  chusing  the  Electors,  and 
the  Day  on  which  they  shall  give  their  Votes;  which  Day  shall  be  the 
same  throughout  the  United  States. 

No  person  except  a  natural  born  Citizen,  or  a  Citizen  of  the  United 
States  at  the  time  of  the  Adoption  of  this  Constitution,  shall  be  eligible 
to  the  Office  of  President;  neither  shall  any  Person  be  eligible  to  that 
Office  who  shall  not  have  attained  to  the  Age  of  thirty-five  Years,  and 
been  fourteen  Years  a  Resident  within  the  United  States. 

Inglis  v.  The  Trustees  of  the  Sailors'  Snug  Harbor,  3  Pet.  99. 

In  Case  of  the  Removal  of  the  President  from  Office,  or  of  his  Death, 
Resignation,  or  Inability  to  discharge  the  Powers  and  Duties  of  the 
said  Office,  the  same  shall  devolve  on  the  Vice-President,  and  the  Con- 
gress may  by  Law  provide  for  the  Case  of  Removal,  Death,  Resignation 
or  Inability,  both  of  the  President  and  Vice-President,  declaring  what 
Officer  shall  then  act  as  President,  and  such  Officer  shall  act  accordingly, 
until  the  Disability  be  removed,  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  Times,  receive  for  his  Services,  a  Com- 

1  This  clause  has  been  superseded  by  the  Twelfth  Amendment. 


APPENDIX  627 

pensation,  which  shall  neither  be  encreased  nor  diminished  during  the     APPENDIX 
Period  for  which  he  shall  have  been  elected,  and  he  shall  not  receive          XX 
within  that  Period  any  other  Emolument  from  the  United  States,  or 
any  of  them. 

Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429. 

Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take  the  fol- 
lowing Oath  or  Affirmation:  "  I  do  solemnly  swear  (or  affirm)  that  I  will 
faithfully  execute  the  Office  of  President  of  the  United  States,  and  will 
to  the  best  of  my  Ability,  preserve,  protect  and  defend  the  Constitution 
of  the  United  States." 

SECTION  2.  The  President  shall  be  Commander  in  Chief  of  the  Army 
and  Navy  of  the  United  States,  and  of  the  Militia  of  the  several  States, 
when  called  into  the  actual  Service  of  the  United  States;  he  may  require 
the  Opinion,  in  writing,  of  the  principal  Officer  in  each  of  the  executive 
Departments,  upon  any  subject  relating  to  the  Duties  of  their  respective 
Offices,  and  he  shall  have  Power  to  grant  Reprieves  and  Pardons  for 
Offenses  against  the  United  States,  except  in  Cases  of  Impeachment. 

United  States  v.  Wilson,  7  Pet.  150;  Ex  parte  William  Wells,  18  How. 
307;  Ex  parte  Garland,  4  Wall.  333;  Armstrong's  Foundry,  6  Wall. 
766;  The  Grape  Shot,  9  Wall.  129;  United  States  v.  Padelford,  9  Wall 
542;  United  States  v.  Klein,  13  Wall.  128;  Armstrong  v.  The  United 
States,  13  Wall.  152;  Pargoud  v.  The  United  States,  13  Wall.  156; 
Hamilton  v.  Dillin,  21  Wall.  73;  Mechanics'  and  Traders'  Bank  v. 
Union  Bank,  22  Wall.  276;  Lamar,  ex.,  v.  Browne  et  al.,  92  U.  S.  187; 
Wallach  et  al.  v.  Van  Riswick,  92  U.  S.  202;  Eustis  v.  Bolles,  150  U.  S. 
36i. 

He  shall  have  Power,  by  and  with  the  Advice  and  Consent  of  the 
Senate,  to  make  Treaties,  provided  two  thirds  of  the  Senators  present 
concur;  and  he  shall  nominate,  and  by  and  with  the  Advice  and  Consent 
of  the  Senate,  shall  appoint  Ambassadors,  other  public  Ministers  and 
Consuls,  Judges  of  the  supreme  Court,  and  all  other  Officers  of  the 
United  States,  whose  Appointments  are  not  herein  otherwise  provided 
for,  and  which  shall  be  established  by  Law:  but  the  Congress  may  by 
Law  vest  the  Appointment  of  such  inferior  Officers,  as  they  think 
proper,  in  the  President  alone,  in  the  Courts  of  Law,  or  in  the  Heads 
of  Departments. 

Ware  v.  Hylton  et  al.,  3  Dall.  199;  Marbury  v.  Madison,  I  Cr.  137; 
United  States  v.  Kirkpatrick,  9  Wh.  720;  American  Insurance  Com- 
pany v.  Canter  (356  bales  cotton),  i  Pet.  511;  Foster  and  Elam  v. 
Neilson,  2  Pet.  253;  Cherokee  Nation  v.  State  of  Georgia,  5  Pet.  i; 
Patterson  v.  Winn  et  al.,  5  Pet.  233;  Worcester  v.  State  of  Georgia, 
6  Pet.  515;  City  of  New  Orleans  v.  De  Armas  et  al.,  9  Pet.  224;  Holden 
v.  Joy,  17  Wall.  21 1 ;  Geofroy  v.  Riggs,  133  U.  S.  258;  Homer  v.  United 
States,  143  U.  S.  570;  Shoemaker  v.  United  States,  147  U.  S.  282;  Par- 
sons v.  United  States,  167  U.  S.  324;  Rice  v.  Ames,  180  U.  S.  371; 
Fourteen  Diamond  Rings  ».  United  States,  183  U.  S.  176;  Dorr  v. 
United  States,  195  U.  S.  138. 


628  APPENDIX 

APPENDIX         The  President  shall  have  Power  to  fill  up  all  Vacancies  that  may  hap- 
XX  pen  during  the  Recess  of  the  Senate,  by  granting  Commissions  which 

shall  expire  at  the  End  of  their  next  Session. 

The  United  States  v.  Kirkpatrick  et  al.,  9  Wh.  720. 

SECTION  3.  He  shall  from  time  to  time  give  to  the  Congress  Informa- 
tion of  the  State  of  the  Union,  and  recommend  to  their  Consideration 
such  Measures  as  he  shall  judge  necessary  and  expedient;  he  may,  on 
extraordinary  Occasions,  convene  both  Houses,  or  either  of  them,  and 
in  Case  of  Disagreement  between  them,  with  Respect  to  the  Time  of 
Adjournment,  he  may  adjourn  them  to  such  Time  as  he  shall  think 
proper;  he  shall  receive  Ambassadors  and  other  public  Ministers;  he 
shall  take  Care  that  the  Laws  be  faithfully  executed,  and  shall  Com- 
mission all  the  Officers  of  the  United  States. 

Marbury  v.  Madison,  I  Cr.  137;  Kendall,  Postmaster-General,  v. 
The  United  States,  12  Pet.  524;  Luther  v.  Borden,  7  How.  I ;  The  State 
of  Mississippi  v.  Johnson,  President,  4  Wall.  475;  Stewart  o.  Kahn,  II 
Wall.  493;  In  re  Neagle,  135  U.  S.  I. 

SECTION  4.  The  President,  Vice-President  and  all  civil  Officers  of  the 
United  States,  shall  be  removed  from  Office  on  Impeachment  for,  and 
Conviction  of,  Treason,  Bribery,  or  other  high  Crimes  and  Misde- 
meanors. 

Langford  v.  United  States,  101  U.  S.  341. 

ARTICLE  III 

SECTION  I.  The  judicial  Power  of  the  United  States,  shall  be  vested 

:   in  one  supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may 

from  time  to  time  ordain  and  establish.  The  Judges,  both  of  the  supreme 

and  inferior  Courts,  shall  hold  their  Offices  during  good  Behaviour,  and 

\\$*   jfshall,  at  stated  Times,  receive  for  their  Services  a  Compensation  which 

shall  not  be  diminished  during  their  Continuance  in  Office. 

Chisholm,  ex.,  v.  Georgia,  2  Dall.  419;  Stuart  v.  Laird,  I  Cr.  299; 
United  States  v.  Peters,  5  Cr.  115;  Martin  v.  Hunter's  Lessee,  I  Wh. 
304;  Cohens  v.  Virginia,  6  Wh.  264;  Osborn  v.  United  States  Bank, 
9  Wh.  738;  Benner  et  al.  v.  Porter,  9  How.  235;  The  United  States  v. 
Ritchie,  17  How.  525;  Murray's  Lessee  et  al.  v.  Hoboken  Land  and 
Improvement  Company,  18  How.  272;  Ex  parte  Vallandigham,  I  Wall. 
243;  Ames  v.  Kansas,  in  U.  S.  449;  In  re  Ross,  140  U.  S.  453;  McAl- 
lister v.  United  States,  141  U.  S.  174;  Pollock  v.  Farmers'  Loan  &  Trust 
Co.,  157  U.  S.  429;  Robertson  v.  Baldwin,  165  U.  S.  275;  Hanover 
National  Bank  v.  Moyses,  186  U.  S.  181;  Turner  v.  Williams,  194  U.  S. 
279;  Ex  parte  Wisner,  203  U.  S.  449. 

SECTION  2.  The  judicial  Power  shall  extend  to  all  Cases,  in  Law  and 
Equity,  arising  under  this  Constitution,  the  Laws  of  the  United  States, 
and  Treaties  made,  or  which  shall  be  made,  under  their  Authority ;  — 
to  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Consuls; 
—  to  all  Cases  of  admiralty  and  maritime  Jurisdiction;  —  to  Contro- 


APPENDIX^  629 

versies  to  which  the  United  States  shall  be  a  Party;  —  to  Contro-     APPENDIX 
versies  between  two  or  more  States;  —  between  a  State  and  Citizens          XX 
of  another  State;  —  between  Citizens  of  different  States,  —  between 
Citizens  of  the  same  State  claiming  Lands  under  Grants  of  different 
States,  and  between  a  State,  or  the  Citizens  thereof,  and  foreign  States, 
Citizens  or  Subjects. 

Hayburn's  Case  (note),  2  Dall.  410;  Chisholm,  ex.,  v.  Georgia,  2 
Dall.  419;  Glass  et  al.  v.  Sloop  Betsey,  3  Dall.  6;  United  States  v.  La 
Vengeance,  3  Dall.  297;  Hollingsworth  et  al.  v.  Virginia,  3  Dall.  378; 
Mossman,  ex.,  v.  Higginson,  4  Dall.  12;  Marbury  v.  Madison,  I  Cr. 
137;  Hepburn  et  al.  v.  Ellzey,  2  Cr.  444;  United  States  v.  More,  3  Cr. 
159;  Strawbridge  et  al.  v.  Curtiss  et  al.,  3  Cr.  267;  Ex  parte  Bollman 
and  Swartwout,  4  Cr.  75;  Rose  v.  Himely,  4  Cr.  241 ;  Chappedelaine  et 
al.  v.  Dechenaux,  4  Cr.  305;  Hope  Insurance  Company  v.  Boardman  et 
al.,  5  Cr.  57;  Bk.  of  United  States  v.  Deveaux  et  al.,  5  Cr.  61 ;  Hodgson 
et  al.  v.  Bowerbank  et  al.,  5  Cr.  303;  Owings  v.  Norwood's  Lessee,  5 
Cr.  344;  Durousseau  v.  The  United  States,  6  Cr.  307;  United  States 
v.  Hudson  and  Goodwin,  7  Cr.  32;  Martin  v.  Hunter,  I  Wh.  304;  Col- 
son  et  al.  v.  Lewis,  2  Wh.  377;  United  States  v.  Bevans,  3  Wh.  336; 
Cohens  v.  Virginia,  6  Wh.  264;  Ex  parte  Kearney,  7  Wh.  38;  Matthews 
v.  Zane,  7  Wh.  164;  Osborn  v.  United  States  Bank,  9  Wh.  738;  United 
States  v.  Ortega,  n  Wh.  467;  American  Insurance  Company  v.  Canter 
(356  bales  cotton),  I  Pet.  511;  Jackson  v.  Twentyman,  2  Pet.  136; 
Cherokee  Nation  v.  State  of  Georgia,  5  Pet.  I ;  State  of  New  Jersey 
v.  State  of  New  York,  5  Pet.  283;  Davis  v.  Packard  et  al.,  6  Pet.  41; 
United  States  v.  Arredondo  et  al.,  6  Pet.  691 ;  Davis  v.  Packard  et  al.,  7 
Pet.  276;  Breedloveet  al.  v.  Nicolet  et  al.,  7  Pet.  413;  Browne.  Keene, 
8  Pet.  112;  Davis  v.  Packard  et  al.,  8  Pet.  312;  City  of  New  Orleans 
v.  De  Armas  et  al.,  9  Pet.  224;  The  State  of  Rhode  Island  v.  The 
Commonwealth  of  Massachusetts,  12  Pet.  657;  The  Bank  of  Augusta 
v.  Earle,  13  Pet.  519;  The  Commercial  and  Railroad  Bank  of  Vicks- 
burg  v.  Slocomb  et  al.,  14  Pet.  60;  Suydam  et  al.  v.  Broadnax,  14  Pet. 
67;  Prigg  v.  The  Commonwealth  of  Pennsylvania,  16  Pet.  530;  Louis- 
ville, Cincinnati  and  Charleston  Railway  Company  ».  Letson,  2  How. 
497;  Cary  et  als.  v.  Curtis,  3  How.  236;  Waring  v.  Clarke,  5  How.  441; 
Luther  v.  Borden,  7  How.  i ;  Sheldon  et  al.  v.  Sill,  8  How.  441 ;  The 
Propeller  Genesee  Chief  v.  Fitzhugh  et  al.,  12  How.  443;  Fretz  et  al. 
v.  Bull  et  al.,  12  How.  466;  Neves  et  al.  v.  Scott  et  al.,  13  How.  268; 
State  of  Pennsylvania  v.  The  Wheeling,  etc.,  Bridge  Company  et  al., 
13  How.  518;  Marshall  v.  The  Baltimore  and  Ohio  R.  R.  Co.,  16  How. 
314;  The  United  States  v.  Guthrie,  17  How.  284;  Smith  v.  State  of  Mary- 
land, 18  How.  71;  Jones  et  al.  v.  League,  18  How.  76;  Murray's  Lessee 
et  al.  v.  Hoboken  Land  and  Improvement  Company,  18  How.  272; 
Hyde  et  al.  v.  Stone,  20  How.  170;  Irvine  v.  Marshall  et  al.,  20  How. 
558;  Fenn  v.  Holmes,  21  How.  481;  Morewood  et  al.  v.  Enequist,  23 
How.  491;  Commonwealth  of  Kentucky  v.  Dennison,  governor,  24 
How.  66;  Ohio  and  Mississippi  Railroad  Company  v.  Wheeler,  i  Black, 
286;  The  Steamer  Saint  Lawrence,  i  Black,  522;  The  Propeller  Com- 
merce, i  Black,  574;  Ex  parte  Vallandigham,  I  Wall.  243;  Ex  parte 
Milligan,  4  Wall,  i;  The  Moses  Taylor,  4  Wall.  411;  State  of  Missis- 
sippi v.  Johnson,  President,  4  Wall.  475;  The  Hine  v.  Trevor,  4  Wall. 
555;  City  of  Philadelphia  v.  The  Collector,  5  Wall.  720;  State  of  Geor- 


630  APPENDIX 

APPENDIX  gia  v.  Stanton,  6  Wall.  50;  Payne  v.  Hook,  7  Wall.  425;  The  Alicia,  7 

XX  Wall.  571;  Ex  parte  Yerger,  8  Wall.  85;  Insurance  Company  v.  Dun- 

ham, ii  Wall,  i ;  Virginia  v.  West  Virginia,  n  Wall.  39;  Coal  Company 
v.  Blatchford,  n  Wall.  172;  Railway  Company  v.  Whitton's  Adm., 
13  Wall.  270;  Tarble's  Case,  13  Wall.  397;  Blyew  et  al.  v.  The 
United  States,  13  Wall.  581;  Davis  v.  Gray,  16  Wall.  203;  Case  of  the 
Sewing  Machine  Companies,  18  Wall.  353;  Insurance  Company  v. 
Morse,  20  Wall.  445;  Vannevar  v.  Bryant,  21  Wall.  41;  The  Lotta- 
wanna,  21  Wall.  558;  Gaines  v.  Fuentes  et  al.,  92  U.  S.  10;  Mutter  ». 
Dows,  94  U.  S.  444;  Doyle  v .  Continental  Insurance  Company,  94  U.  S. 
535;  Tennessee  v.  Davis,  100  U.  S.  257;  Baldwin  v.  Franks,  120  U.  S. 
678;  Barron  v.  Burnside,  121  U.  S.  186;  St.  Louis,  Iron  Mountain  and 
Southern  Railway  v.  Vickers,  122  U.  S.  360;  Chinese  Ex.  Case,  130 
U.  S.  581;  Brooks  v.  Missouri,  124  U.  S.  394;  New  Orleans  Water 
Works  v.  Louisiana  Sugar  Refining  Co.,  125  U.  S.  18;  Spencer  v.  Mer- 
chant, 125  U.  S.  345;  Dale  Tile  Mfg.  Co.  v.  Hyatt,  125  U.  S.  46;  Felix 
v.  Scharnweber,  125  U.  S.  54;  Hannibal  and  St.  Joseph  R.  R.  v.  Mis- 
souri River  Packet  Co.,  125  U.  S.  260;  Kreiger  v.  Shelby  R.  R.  Co.,  125 
U.  S.  39;  Craig  v.  Leitensdorfer,  127  U.  S.,  764;  Jones  v.  Craig,  127  U.  S. 
213;  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265;  United  States  v. 
Beebe,  127  U.  S.  338;  Chinese  Ex.  Case,  130  U.  S.  581 ;  Lincoln  County 
v.  Luning,  133  U.  S.  529;  Christian  v.  Atlantic  &  N.  C.  R.  Rd.  Co.,  133 
U.  S.  233;  Haus  v.  Louisiana,  134  U.  S.  I ;  Louisiana  ex  rel.  The  N.  Y. 
Guaranty  &  Indemnity  Co.  v.  Steele,  134  U.  S.  280;  Jones  v.  United 
States,  137  U.  S.  202;  Manchester  v.  Mass.,  139  U.  S.  240;  In  re  Ross, 
140  U.  S.  453;  In  re  Garnett,  141  U.  S.  i;  United  States  v.  Texas,  143 
U.  S.  621;  Cooke  v.  Avery,  147  U.  S.  375;  S.  Pac.  Co.  v.  Denton,  146 
U.  S.  202;  Lawton  v.  Steele,  152  U.  S.  133;  Interstate  Com.  Comsn.  v. 
Brimson,  154  U.  S.  447;  Chappell  v.  United  States,  160  U.  S.  499;  St. 
Louis,  etc.,  Ry.  Co.  t».  James,  161  U.  S.  545;  Hanford  v.  Davies,  163 
U.  S.  273;  Fallbrook  Irrigation  District  v.  Bradley,  164  U.  S.  112;  In  re 
Lennon,  166  U.  S.  548;  Meyer  v.  Richmond,  172  U.  S.  82;  Henderson 
Bridge  Co.  v.  Henderson  City,  173  U.  S.  592;  La  Abra  Silver  Mining 
Co.  v.  United  States,  175  U.  S.  423;  Louisiana  v.  Texas,  176  U.  S.  i; 
Western  Union  Telegraph  Co.  v.  Ann  Arbor  R.  R.  Co.,  178  U.  S.  239; 
Smith  v.  Reeves,  178  U.  S.  436;  Motes  v.  United  States,  178  U.  S.  458; 
Wiley  v.  Sinkler,  179  U.  S.  58;  Missouri  v.  Illinois,  180  U.  S.  208;  Eastern 
Bldg.  Association  v.  Welling,  181  U.  S.  47;  Dooley  v.  United  States, 
182  U.  S.  222;  Tullock  v.  Mulvane,  184  U.  S.  497;  Patton  v.  Brady,  184 
U.  S.  608;  Kansas  ».  Colorado,  185  U.  S.  14;  Swafford  v.  Templeton, 
185  U.  S.  487;  Mobile  Transportation  Co.  v.  Mobile,  187  U.  S.  479; 
Andrews  v.  Andrews,  188  U.  S.  14;  Hooker  ».  Los  Angeles,  188  U.  S. 
314;  Cummings  v.  Chicago,  188  U.  S.  410;  Schaefer  v.  Werling,  188 
U.  S.  516;  The  Roanoke,  189  U.  S.  185;  Detroit,  &c.,  Ry.  v.  Osborn, 
189  U.  S.  383;  Patterson  v.  Bark  Eudora,  190  U.  S.  169;  Howard  v. 
Fleming,  191  U.  S.  126;  Arbuckle  v.  Blackburn,  191  U.  S.  405;  Deposit 
Bank  v.  Frankfort,  191  U.  S.  499;  Spencer  ».  Duplan  Silk  Co.,  191  U.  S. 
526;  Wabash  R.  R.  Co.  v.  Pearce,  192  U.  S.  179;  Rogers  v.  Alabama, 
192  U.  S.  226;  South  Dakota  v.  North  Carolina,  192  U.  S.  286;  Bankers' 
Casualty  Co.  v.  Minn.  St.  P.,  &c.  Ry.,  192  U.  S.  371;  Spreckels  Sugar 
Refining  Co.  v.  McClain,  192  U.  S.  397;  Minnesota  v.  Northern  Se- 
curities Co.,  194  U.  S.  48;  Hooker  v.  Burr,  194  U.  S.  415;  Cleveland 
v.  Cleveland  City  Ry.  Co.,  194  U.  S.  517;  Traction  Company  v.  Mining 


APPENDIX  631 

Co.,  196  U.  S.  239;  Dawson  v.  Columbia  Trust  Co.,  197  U.  S.  178;      APPENDIX 
Jacobson  v.  Massachusetts,  197  U.  S.  n;  Leonard  v.  Vicksburg,  &c.,  XX 

R.  R.  Co.,  198  U.  S.  416;  Farrell  v.  O'Brien,  199  U.  S.  89;  South  Caro- 
lina v.  United  States,  199  U.  S.  437;  Carfer  v.  Caldwell,  200  U.  S.  293; 
Security  Mutual  Life  Ins.  Co.  v.  Prewitt,  202  U.  S.  246;  Kansas  v. 
United  States,  204  U.  S.  331;  The  Winnebago,  205  U.  S.  354;  Lee  v. 
New  Jersey,  207  U.  S.  67;  St.  Louis  &  Iron  Mountain  Railway  ».  Taylor, 
210  U.  S.  281. 

In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Con- 
suls, and  those  in  which  a  State  shall  be  a  Party,  the  supreme  Court  shall 
have  original  Jurisdiction.  In  all  the  other  Cases  before  mentioned,  the 
supreme  Court  shall  have  appellate  Jurisdiction,  both  as  to  Law  and 
Fact,  with  such  Exceptions,  and  under  such  Regulations  as  the  Con- 
gress shall  make. 

Chisholm,  ex.,  v.  Georgia,  2  Dall.  419;  Wiscart  et  al.  v.  Dauchy,  3 
Dall.  221;  Marbury  v.  Madison,  i  Cr.  137;  Durousseau  et  al.  f.  United 
States,  6  Cr.  307;  Martin  v.  Hunter's  Lessee,  I  Wh.  304;  Cohens  v. 
Virginia,  6  Wh.  234;  Ex  parte  Kearney,  7  Wh.  38;  Wayman  v.  South- 
ard, 10  Wh.  i;  Bank  of  the  United  States  v.  Halstead,  10  Wh.  51; 
United  States  v.  Ortega,  n  Wh.  467;  The  Cherokee  Nation  v.  the  State 
of  Georgia,  5  Pet.  i;  Ex  parte  Crane  et  als.,  5  Pet.  189;  The  State  of 
New  Jersey  v.  The  State  of  New  York,  5  Pet.  283;  Ex  parte  Sibbald  v. 
United  States,  12  Pet.  488;  The  State  of  Rhode  Island  v.  The  State  of 
Massachusetts,  12  Pet.  657;  State  of  Pennsylvania  v.  the  Wheeling, 
&c.,  Bridge  Company,  13  How.  518;  In  re  Kaine,  14  How.  103;  Ableman 
v.  Booth  and  United  States  v.  Booth,  21  How.  506;  Freeborn  v.  Smith, 
2  Wall.  1 60;  Ex  parte  McCardle,  6  Wall.  318;  Ex  parte  McCardle,  7 
Wall.  506;  Ex  parte  Yerger,  8  Wall.  85;  The  Lucy,  8  Wall.  307;  The 
Justices  v.  Murray,  9  Wall.  274;  Pennsylvania  v.  Quicksilver  Com- 
pany, 10  Wall.  553;  Murdock  v.  City  of  Memphis,  20  Wall.  590; 
The  Francis  Wright,  105  U.  S.  381;  Bors  v.  Preston,  in  U.  S.  252; 
Ames  v.  Kansas,  in  U.  S.  449;  Clough  v.  Curtis,  134  U.  S.  361;  In  re 
Neagle,  135  U.  S.  i;  Craig  t;.  Leitensdorfer,  127  U.  S.  764;  Wisconsin 
v.  Pelican  Ins.  Co.,  127  U.  S.  265;  United  States  v.  Texas,  143  U.  S. 
621;  Mobile  &  Ohio  R.  Rd.  ».  Tenn.,  153  U.  S.  486;  Woodruff  v.  Miss., 
162  U.  S.  291;  McCullough  v.  Va.,  172  U.  S.  102;  Louisiana  v.  Texas, 
176  U.  S.  i ;  Wilkes  County  v.  Coler,  180  U.  S.  506;  W.  W.  Cargill  Co. 
v.  Minnesota,  180  U.  S.  452;  Mallettf.  North  Carolina,  181  U.  S.  589; 
United  States  v.  Bitty,  208  U.  S.  393. 

The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment,  shall  be  by 
Jury;  and  such  Trial  shall  be  held  in  the  State  where  the  said  Crimes 
shall  have  been  committed ;  but  when  not  committed  within  any  State, 
the  Trial  shall  be  at  such  Place  or  Places  as  the  Congress  may  by  Law 
have  directed. 

Ex  parte  Milligan,  4  Wall.  2;  Barton  v.  Barbour,  104  U.  S.  126;  Ex 
parte  Wall.,  107  U.  S.  265;  Callan  v.  Wilson,  127  U.  S.  540;  Nashville, 
Chattanooga,  etc.,  Railway  v.  Alabama,  128  U.  S.  96;  Eilenbecker  v. 
Plymouth  County,  134  U.  S.  31;  Cook  v.  United  States,  138  U.  S.  157; 
In  re  Ross,  140  U.  S.  453;  Fong  YueTing  i;., United  States,  149  U.  S. 
698;  In  re  Debs,  petitioner,  158  U.  S.  564;  Thompson  v.  Utah,  170 


632  APPENDIX 

APPENDIX  U.  S.  343;  Schick  v.  United  States,  195  U.  S.  65;  Dorr  v.  United  States, 

XX  195  U.  S.  138;  Matter  of  Strauss,  197  U.  S.  324;  Marvin  v.  Trout,  199 

U.  S.  212;  Martin  v.  Texas,  200  U.  S.  316;  Tinsley  v.  Treat,  205  U.  S. 
20;  Armour  Packing  Co.  v.  United  States,  209  U.  S.  56. 

SECTION  3.  Treason  against  the  United  States,  shall  consist  only  in 
levying  War  against  them,  or  in  adhering  to  their  Enemies,  giving  them 
Aid  and  Comfort.  No  Person  shall  be  convicted  of  Treason  unless  on 
the  Testimony  of  two  Witnesses  to  the  same  overt  Act,  or  on  Confes- 
sion in  open  Court. 

United  States  v.  The  Insurgents,  2  Dall.  335;  United  States  t>. 
Mitchell,  2  Dall.  348;  Ex  parte  Bollman  and  Swartwout,  4  Cr.  75; 
United  States  v.  Aaron  Burr,  4  Cr.  470. 

The  Congress  shall  have  power  to  declare  the  Punishment  of  Treason, 
but  no  Attainder  of  Treason  shall  work  Corruption  of  Blood,  or  For- 
feiture except  during  the  Life  of  the  Person  attainted. 

Bigelow  v.  Forest,  9  Wall.  339;  Day  v.  Micou,  18  Wall.  156;  Ex 
parte  Lange,  18  Wall.  163;  Wallach  et  al.  v.  Van  Riswick,  92  U.  S.  202. 

ARTICLE  IV 

SECTION  i.  Full  Faith  and  Credit  shall  be  given  in  each  State  to  the 
public  Acts,  Records,  and  judicial  Proceedings  of  every  other  State. 
And  the  Congress  may  by  general  Laws  prescribe  the  Manner  in  which 
such  Acts,  Records  and  Proceedings  shall  be  proved,  and  the  Effect 
thereof. 

Mills  v.  Duryee,  7  Cr.  481;  Hampton  v.  McConnel,  3  Wh.  234; 
Mayhew  v.  Thatcher,  6  Wh.  129;  Darby's  Lessee  v.  Mayer,  10  Wh. 
465;  The  United  States  v.  Amedy,  n  Wh.  392;  Caldwell  et  al.  i>.  Car- 
rington's  Heirs,  9  Pet.  86;  M'Elmoylev.  Cohen,  13  Pet.  312;  The  Bank 
of  Augusta  v.  Earle,  13  Pet.  519;  Bank  of  the  State  of  Alabama  0. 
Dalton,  9  How.  522;  D'Arcy  v.  Ketchum,  II  How.  165;  Christmas  v. 
Russell,  5  Wall.  290;  Green  v.  Van  Buskirk,  7  Wall.  139;  Paul  v.  Vir- 
ginia, 8  Wall.  168;  Board  of  Public  Works  v.  Columbia  College,  17 
Wall.  521;  Thompson  v.  Whitman,  18  Wall.  457;  Bonaparte  v.  Tax 
Court,  104  U.  S.  592;  Robertson  v.  Pickrell,  109  U.  S.  608;  Brown  et 
al.  v.  Houston,  Collector,  et  al.,  114  U.  S.  622;  Hanley  v.  Donoghue, 
116  U.  S.  i;  Renaud  v.  Abbott,  116  U.  S.  277;  Chic,  and  Alton  R.  R.  v. 
Wiggins  Ferry  Co.,  119  U.  S.  615;  Colez;.  Cunningham,  133  U.  S.  107; 
Blount  v.  Walker,  134  U.  S.  607;  Texas  &  Pacific  Ry.  Co.  v.  Southern 
Pacific  Co.,  137  U.  S.  48;  Simmons  v.  Saul,  138  U.  S.  439;  Reynolds  v. 
Stockton,  140  U.  S.  254;  Carpenter  v.  Strange,  141  U.  S.  87;  Glenn  p. 
Garth,  147  U.  S.  360;  Huntington  v.  Attrill,  146  U.  S.  657;  Laing  v.  Rig- 
ney,  160  U.  S.  531;  Chicago,  &c.,  Ry.  Co.  v.  Sturm,  174  U.  S.  710; 
Thormann  v.  Frame,  176  U.  S.  350;  Hancock  Ntl.  Bank  v.  Farnum,  176 
U.  S.  640;  Clarke  v.  Clarke,  178  U.  S.  186;  Wilkes  County  v.  Coler,  180 
U.  S.  506;  W.  W.  Cargill  Co.  v.  Minnesota,  180  U.  S.  452;  Johnson 
v.  New  York  Life  Ins.  Co.,  187  U.  S.  491;  Andrews  v.  Andrews,  188 
U.  S.  14;  Blackstone  v.  Miller,  188  U.  S.  189;  Finney  v.  Guy,  189  U.  S. 
335'.  Anglo-American  Provision  Co.  v.  Davis  Provision  Co.,  191  U.  S. 


APPENDIX  633 

3735  Wabash  R.  R.  Co.  v.  Flannigan,  192  U.  S.  29;  German  Savings      APPENDIX 
Society  v.  Dormitzer,  192  U.  S.  125;  Wedding  v.  Meyler,  192  U.  S.  573;  XX 

National  Mutual  Bldg.  &  Loan  Ass.  v.  Brahan,  193  U.  S.  635;  Minne- 
sota v.  Northern  Securities  Co.,  194  U.  S.  48;  National  Exchange  Bank 
v.  Wiley,  195  U.  S.  257;  Jaster  v.  Currie,  198  U.  S.  144;  Harding  v. 
Harding,  198  U.  S.  317;  Harris  v.  Balk,  198  U.  S.  215;  Louisville  & 
Nashville  R.  R.  v.  Deer,  200  U.  S.  176;  Haddock  v.  Haddock,  201 
U.  S.  562;  Northern  Assurance  Co.  v.  Grand  View  Building  Associa- 
tion, 203  U.  S.  106;  Wetmore  v.  Karrick,  205  U.  S.  141;  Old  Wayne 
Life  Association  v.  McDonough,  204  U.  S.  8;  Tilt  v.  Kelsey,  207  U.  S. 
43;  Brown  v.  Fletcher's  Estate,  210  U.  S.  82;  Fauntleroy  v.  Lun,  210 
U.  S.  230. 

SECTION  2.  The  Citizens  of  each  State  shall  be  entitled  to  all  Privi- 
leges and  Immunities  of  Citizens  in  the  several  States. 

Bank  of  United  States  v.  Deveaux,  5  Cr.  61 ;  Gassies  v.  Ballou,  6  Pet. 
761 ;  The  State  of  Rhode  Island  v.  The  Commonwealth  of  Massachu- 
setts, 12  Pet.  657;  The  Bank  of  Augusta  v.  Earle,  13  Pet.  519;  Moore 
v.  The  People  of  the  State  of  Illinois,  14  How.  13;  Conner  et  al.  v. 
Eliot  et  al.,  18  How.  591 ;  Dred  Scott  v.  Sandford,i9  How.  393;  Crandall 
v.  State  of  Nevada,  6  Wall.  35;  Woodruff  v,  Parham,  8  Wall.  123;  Paul 
v.  Virginia,  8  Wall.  168;  Downham  v.  Alexandria  Council,  10  Wall. 
173;  Liverpool  Insurance  Company  v.  Massachusetts,  10  Wall.  566; 
Ward  v.  Maryland,  12  Wall,  418;  Slaughterhouse  Cases,  16  Wall.  36; 
Bradwell  v.  The  State,  16  Wall.  130;  Chemung  Bank  v.  Lowery,  93 
U.  S.  72;  McCready  v.  Virginia,  94  U.  S.  391;  Brown  v.  Houston,  114 
U.  S.  622;  Pembina  Mining  Co.  v.  Penna.,  125  U.  S.  181;  Kimmish  v. 
Ball,  129  U.  S.  217;  Cole  v.  Cunningham,  133  U.  S.  107;  Leisy  v.  Hardin, 
135  U.  S.  100;  Minnesota  v.  Barber,  136  U.  S.  313;  McKane  v.  Durston, 
153  U.  S.  684;  Pittsburgh  &  So.  Coal  Co.  v.  Bates,  156  U.  S.  577;  Blake 
».  McClung,  172  U.  S.  239;  Blake  v.  McClung,  176  U.  S.  59;  Sully  v. 
Am.  Ntl.  Bank,  178  U.  S.  289;  Reymann  Brewing  Co.  v.  Brister,  179 
U.  S.  445;  Williams  v.  Fears,  179  U.  S.  270;  Travellers  Insurance  Co.  v. 
Connecticut,  185  U.  S.  364;  Chad  wick  v.  Kelley,  187  U.  S.  540;  Dia- 
mond Glue  Co.  v.  U.  S.  Glue  Co.,  187  U.  S.  61 1 ;  Blackstone  v.  Miller, 1 88 
U.  S.  189;  Anglo-American  Provision  Co.  v.  Davis  Provision  Co.,  191 
U.  S.  373;  Chambers  v.  Baltimore  and  Ohio  Railroad  Co.,  207  U.  S. 
142;  Hudson  Water  Co.  v.  McCarter,  209  U.  S.  349. 

A  Person  charged  in  any  State  with  Treason,  Felony,  or  other  Crime, 
who  shall  flee  from  Justice,  and  be  found  in  another  State,  shall  on 
demand  of  the  executive  Authority  of  the  State  from  which  he  fled,  be 
delivered  up,  to  be  removed  to  the  State  having  Jurisdiction  of  the 
Crime. 

Holmes  v.  Jennison  et  al.,  14  Pet.  540;  Commonwealth  of  Kentucky 
v.  Dennison,  governor,  24  How.  66;  Taylor  v.  Taintor,  16  Wall.  366; 
Carroll  County  v.  Smith,  in  U.  S.  556;  Ex  parte  Reggel,  114  U.  S. 
642;  Mahon  v.  Justice,  127  U.  S.  700;  Lascelles  v.  Georgia,  148  U.  S. 
537;  Pearce  v.  Texas,  155  U.  S.  311;  Utter  v.  Franklin,  172  U.  S.  416; 
Munsey  v.  Clough,  196  U.  S.  364;  Appleyard  v.  Massachusetts,  203 
U.  S.  222;  Pettibone  v.  Nichols,  203  U.  S.  192;  McNichols  v.  Pease, 
207  U.  S.  100;  Bassing  v.  Cady,  208  U.  S.  386;  Pierce  t>.  Creecy,  210  U.  S. 
387. 


634  APPENDIX 

APPENDIX         No  Person  held  to  Service  or  Labour  in  one  State,  under  the  Laws 

XX  thereof,  escaping  into  another,  shall,  in  Consequence  of  any  Law  or 

Regulation  therein,  be  discharged  from  such  Service  or  Labour,  but 

shall  be  delivered  up  on  Claim  of  the  Party  to  whom  such  Service  or 

Labour  may  be  due. 

Prigg  v.  The  Commonwealth  of  Pennsylvania,  16  Pet.  539;  Jones 
v.  Van  Zandt,  5  How.  215;  Strader  et  al.  f.  Graham,  10  How.  82;  Moore 
v.  The  People  of  the  State  of  Illinois,  14  How.  13;  Dred  Scott  v.  Sand- 
ford,  19  How.  393;  Ableman  v.  Booth  and  United  States  v.  Booth,  21 
How.  506;  Callan  v.  Wilson,  127  U.  S.  540;  Nashville,  Chattanooga, 
etc.,  Rwy.  v.  Alabama,  128  U.  S.  96. 

SECTION  3.  New  States  may  be  admitted  by  the  Congress  into  this 
Union;  but  no  new  State  shall  be  formed  or  erected  within  the  Juris- 
diction of  any  other  State;  nor  any  State  be  formed  by  the  Junction  of 
two  or  more  States,  or  parts  of  States,  without  the  Consent  of  the  Legis- 
latures of  the  States  concerned  as  well  as  of  the  Congress. 

American  Insurance  Company  et  al.  v.  Canter  (356  bales  cotton), 
I  Pet.  511;  Pollard's  Lessee  v.  Hagan,  3  How.  212;  Cross  et  al.  v.  Har- 
rison, 1 6  How.  164;  Benson  v.  United  States,  146  U.  S.  325;  Ward  v. 
Race  Horse,  163  U.  S.  504;  Bolln  v.  Nebraska,  176  U.  S.  83;  Louisiana 
V.  Mississippi,  202  U.  S.  I. 

The  Congress  shall  have  Power  to  dispose  of  and  make  all  needful 
Rules  and  Regulations  respecting  the  Territory  or  other  Property  be- 
longing to  the  United  States;  and  nothing  in  this  Constitution  shall  be 
so  construed  as  to  Prejudice  any  Claims  of  the  United  States,  or  of  any 
particular  State. 

McCulloch  v.  State  of  Maryland,  4  Wh.  316;  American  Insurance 
Company  v.  Canter,  I  Pet.  511;  United  States  v.  Gratiot  et  al.,  14 
Pet.  526;  United  States  v.  Rogers,  4  How.  567;  Cross  et  al.  v.  Harrison, 
16  How.  164;  Mackey  et  al.  v.  Coxe,  18  How.  100;  Gibson  v.  Chouteau, 
13  Wall.  92;  Clinton  v.  Englebert,  13  Wall.  434;  Beall  v.  New  Mexico, 
1 6  Wall.  535;  Davis  v.  Beason,  133  U.  S.  333;  Wisconsin  Central  R.  Rd. 
Co.  v.  Price  County,  133  U.  S.  496;  Cope  v.  Cope,  137  U.  S.  682;  Mor- 
mon Church  v.  United  States,  136  U.  S.  I ;  Jones  ».  United  States,  137 
U.  S.  202;  St.  Paul,  Minneapolis,  etc.,  Railway  Co.  v.  Phelps,  137  U.  S. 
528;  Talton  v.  Mayes,  163  U.  S.  376;  American  Publishing  Co.  v.  Fisher, 
1 66  U.  S.  464;  Camfield  v.  United  States,  167  U.  S.  518;  Thompson  v. 
Utah,  170  U.  S.  343;  Green  Bay  &  Mississippi  Canal  Co.  v.  Patten 
Paper  Co.,  173  U.  S.  179;  Neely  v.  Henkel  (No.  i),  180  U.  S.  109;  De 
Lima  v.  Bidwell,  182  U.  S.  i;  Dooley  v.  United  States,  182  U.  S.  222; 
Downes  v.  Bidwell,  182  U.  S.  244;  Fourteen  Diamond  Rings  v.  United 
States,  183  U.  S.  176;  Hawaii  v.  Mankichi,  190  U.  S.  197;  Binns  v. 
United  States,  194  U.  S.  486;  Dorr  v.  United  States,  195  U.  S.  138; 
Rassmussen  ».  United  States,  197  U.  S.  516;  United  States  t;.  Heins- 
zen,  206  U.  S.  370;  Grafton  v.  United  States,  206  U.  S.  333;  Ponce  v. 
Roman  Catholic  Church,  210  U.  S.  296. 

SECTION  4.  The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  Republican  Form  of  Government,  and  shall  protect  each  of 


APPENDIX  635 

them  against  invasion ;  and  on  Application  of  the  Legislature,  or  of  the     APPENDIX 
Executive  (when  the  Legislature  cannot  be  convened)  against  domestic         XX 
Violence. 

Luther  v.  Borden,  7  How.  i;  Texas  v.  White,  7  Wall.  700;  In  re 
Duncan,  139  U.  S.  449;  Taylor  et  al.  v.  Beckham  (No.  l),  178  U.  S.  548; 
South  Carolina  v.  United  States,  199  U.  S.  437. 

ARTICLE  V 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem  it 
necessary,  shall  propose  Amendments  to  this  Constitution,  or,  on  the 
Application  of  the  Legislatures  of  two  thirds  of  the  several  States,  shall 
call  a  Convention  for  proposing  Amendments,  which,  in  either  Case, 
shall  be  valid  to  all  Intents  and  Purposes,  as  part  of  this  Constitution, 
when  ratified  by  the  Legislatures  of  three  fourths  of  the  several  States, 
or  by  Conventions  in  three  fourths  thereof,  as  the  one  or  the  other  Mode 
of  Ratification  may  be  proposed  by  the  Congress;  Provided  that  no 
Amendment  which  may  be  made  prior  to  the  Year  One  Thousand  eight 
hundred  and  eight  shall  in  any  Manner  affect  the  first  and  fourth 
Clauses  in  the  Ninth  Section  of  the  first  Article;  and  that  no  State, 
without  its  Consent,  shall  be  deprived  of  it's  equal  Suffrage  in  the  Senate. 

Hollingsworth  et  al.  v.  Virginia,  3  Dall.  378. 

ARTICLE  VI 

All  Debts  contracted  and  Engagements  entered  into,  before  the 
Adoption  of  this  Constitution,  shall  be  as  valid  against  the  United 
States  under  this  Constitution,  as  under  the  Confederation. 

This  Constitution,  and  the  Laws  of  the  United  States  which  shall  be 
made  in  Pursuance  thereof;  and  all  Treaties  made,  or  which  shall  be 
made,  under  the  Authority  of  the  United  States,  shall  be  the  supreme 
Law  of  the  Land;  and  the  Judges  in  every  State  shall  be  bound  thereby, 
any  Thing  in  the  Constitution  or  Laws  of  any  State  to  the  Contrary 
notwithstanding. 

Hayburn's  Case,  2  Dall.  409;  Ware  v.  Hylton,  3  Dall.  199;  Calder 
and  Wife  v.  Bull  and  Wife,  3  Dall.  386;  Marbury  v.  Madison,  i  Cr. 
137;  Chirac  v.  Chirac,  2  Wh.  259;  McCulloch  v.  The  State  of  Maryland, 
4  Wh.  316;  Society  v.  New  Haven,  8  Wh.  464;  Gibbons  v.  Ogden,  9  Wh. 
I ;  Foster  and  Elam  v.  Neilson,  2  Pet.  253;  Buckner  v.  Finley,  2  Pet.  586; 
Worcester  v.  State  of  Georgia,  6  Pet.  515;  Kennett  et  al.  r.  Chambers, 
14  How.  38;  Dodge  v.  Woolsey,  18  How.  331;  State  of  New  York  v. 
Dibble,  21  How.  366;  Ableman  v.  Booth  and  United  States  v.  Booth, 

21  How.  506;  Sinnot  v.  Davenport,  22  How.  227;  Foster  v.  Davenport, 

22  How.  244;  Haver  v.  Yaker,  9  Wall.  32;  Whitney  v.  Robertson,  124 
U.  S.  190;  In  re  Neagle,  135  U.  S.  i;  Horner  v.  United  States,  143  U.  S. 
570;  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698;  Cherokee  Nation 
v.  Kansas  Ry.  Co.,  135  U.  S.  641 ;  Cook  Co.  v.  Calumet  &  Chicago  Canal 
Co.,  138  U.  S.  635;  Gulf,  Colorado  &  Santa  Fe  Rwy.  Co.  v.  Hefley,  158 
U.  S.  98;  In  re  Quarles  and  Butler,  158  U.  S.  532;  Ward  v.  Race  Horse, 


636  'APPENDIX 

APPENDIX  *63  U.  S.  504;  McClellan  v.  Chipman,  164  U.  S.  347;  Smyth  v.  Ames, 

XX  i*>9  U.  S.  466;  Missouri,  Kansas  &  Texas  Railway  Co.  v.  Haber,  169 

U.  S.  613;  Ohio  v.  Thomas,  173  U.  S.  276;  Lone  Wolf  v.  Hitchcock, 
187  U.  S.  553;  South  Carolina  v.  United  States,  199  U.  S.  437. 

The  Senators  and  Representatives  before  mentioned,  and  the  Mem- 
bers of  the  several  State  Legislatures,  and  all  executive  and  judicial 
Officers,  both  of  the  United  States  and  of  the  several  States,  shall  be 
bound  by  Oath  or  Affirmation,  to  support  this  Constitution;  but  no 
religious  Test  shall  ever  be  required  as  a  Qualification  to  any  Office  or 
public  Trust  under  the  United  States. 

Ex  parte  Garland,  4  Wall.  333;  Davis  v.  Beason,  133  U.  S.  333; 
Mormon  Church  v.  United  States,  136  U.  S.  I. 

ARTICLE  VII 

The  Ratification  of  the  Conventions  of  nine  States  shall  be  sufficient 
for  the  Establishment  of  this  Constitution  between  the  States  so  rati- 
fying the  Same. 

DONE  in  Convention  by  the  Unanimous  Consent  of  the  States  present 
the  Seventeenth  Day  of  September  in  the  Year  of  our  Lord  one 
thousand  seven  hundred  and  Eighty  seven  and  of  the  Independence 
of  the  United  States  of  America  the  Twelfth.  In  Witness  whereof 
We  have  hereunto  subscribed  our  Names, 

GO  WASHINGTON 

Presidt.  and  deputy  from  Virginia. 

New  Hampshire 
JOHN  LANGDON  NICHOLAS  GILMAN 

Massachusetts 
NATHANIEL  GORHAM  RUFUS  KING 

Connecticut 
WM.  SAML.  JOHNSON  ROGER  SHERMAN 

New  York 
ALEXANDER  HAMILTON 

New  Jersey 

WIL:  LIVINGSTON  WM.  PATERSON 

DAVID  BREARLEY  JONA:  DAYTON 

Pennsylvania 

B.  FRANKLIN  THOMAS  MIFFLIN 

ROBT.  MORRIS  GEO.  CLYMER 

THOS.  FITZSIMONS  JARED  INGERSOLL 

JAMES  WILSON  Gouv.  MORRIS 


APPENDIX 


637 


GEO.  READ 
JOHN  DICKINSON 
JACO:  BROOM 

JAMES  MCHENRY 
DANL.  CARROLL 

JOHN  BLAIR 


WM.  BLOUNT 
Hu.  WILLIAMSON 


J.  RUTLEDGE 
CHARLES  PINCKNEY 


WILLIAM  FEW 
Attest: 


Delaware 

GUNNING  BEDFORD,  jun 
RICHARD  BASSETT 

Maryland 

DAN  OF  ST.  THOS.  JENIFER 

Virginia 

JAMES  MADISON,  Jr. 

North  Carolina 

RICHD  DOBBS  SPAIGHT 

South  Carolina 

CHARLES  COTESWORTH  PINCKNEY 
PIERCE  BUTLER 

Georgia 

ABR.  BALDWIN 
WILLIAM  JACKSON,  Secretary. 


APPENDIX 
XX 


ARTICLES  IN  ADDITION  TO,  AND  AMENDMENT  OF,  THE  CONSTI- 
TUTION OF  THE  UNITED  STATES  OF  AMERICA,  PROPOSED  BY 
CONGRESS,  AND  RATIFIED  BY  THE  LEGISLATURES  OF  THE 
SEVERAL  STATES,  PURSUANT  TO  THE  FIFTH  ARTICLE  OF  THE 
ORIGINAL  CONSTITUTION 

Eilenbecker  t>.  Plymouth  County,  134  U.  S.  3. 

[ARTICLE  i]  1 

Congress  shall  make  no  law  respecting  an  establishment  of  religion, 
or  prohibiting  the  free  exercise  thereof;  or  abridging  the  freedom  of 


1  The  first  ten  amendments  to  the 
Constitution  of  the  United  States 
were  proposed  to  the  legislatures  of 
the  several  States  by  the  First  Con- 
gress, on  the  25th  of  September, 
1789.  They  were  ratified  by  the  fol- 
lowing States,  and  the  notifications 
of  ratification  by  the  governors 
thereof  were  successively  communi- 
cated by  the  President  to  Congress: 
New  Jersey,  November  20,  1789? 
Maryland,  December  19,  1789; 


North  Carolina,  December  22, 1789; 
South  Carolina,  January  19,  1790; 
New  Hampshire,  January  25,  1790; 
Delaware,  January  28,  1790;  Penn- 
sylvania, March  10, 1790;  New  York, 
March  27, 1790;  Rhode  Island,  June 
15,  1790;  Vermont,  November  3, 
1791,  and  Virginia,  December  15, 
1791.  There  is  no  evidence  on  the 
journals  of  Congress  that  the  legis- 
latures of  Connecticut,  Georgia,  and 
Massachusetts  ratified  them. 


638  APPENDIX 

APPENDIX     speech,  or  of  the  press ;  or  the  right  of  the  people  peaceably  to  assemble, 
XX          and  to  petition  the  Government  for  a  redress  of  grievances. 

Terret  et  al.  v.  Taylor  et  al.,  9  Cr.  43;  Vidal  et  al.  v.  Girard  et  al.t 
2  How.  127;  Ex  parte  Garland,  4  Wall.  333;  United  States  v.  Cruik- 
shank  et  al.,  92  U.  S.  542;  Reynolds  v.  United  States,  98  U.  S.  145; 
Davis  v.  Beason,  133  U.  S.  333;  In  re  Rapier,  143  U.  S.  no;  Horner  v. 
United  States,  143  U.  S.  192 ;  Bradfield  v.  Roberts,  175  U.  S.  291 ;  Turner 
v.  Williams,  194  U.  S.  279;  Jack  t>.  Kansas,  199  U.  S.  372;  Quick  Bear 
v.  Leupp,  210  U.  S.  50. 

[ARTICLE  n] 

A  well  regulated  Militia,  being  necessary  to  the  security  of  a  free 
State,  the  right  of  the  people  to  keep  and  bear  Arms,  shall  not  be  in- 
fringed. 

Presser  v.  Illinois,  116  U.  S.  252;  Spies  v.  Illinois,  123  U.  S.  131; 
Eilenbecker  v.  Plymouth  County,  134  U.  S.  31;  Jack  v.  Kansas,  199 
U.  S.  372- 

[ARTICLE  in] 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house,  without 
the  consent  of  the  Owner,  nor  in  time  of  war,  but  in  a  manner  to  be 
prescribed  by  law. 

[ARTICLE  iv] 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches  and  seizures,  shall  not  be 
violated,  and  no  Warrants  shall  issue,  but  upon  probable  cause,  sup- 
ported by  Oath  or  affirmation,  and  particularly  describing  the  place  to 
be  searched,  and  the  persons  or  things  to  be  seized. 

Smith  v.  State  of  Maryland,  18  How.  71;  Murray's  Lessee  et  al. 
v.  Hoboken  Land  and  Improvement  Company,  18  How.  272;  Ex  parte 
Milligan,  4  Wall.  2;  Boyd  v.  United  States,  116  U.  S.  616;  Spies  v.  Illi- 
nois, 123  U.  S.  131;  Eilenbecker  v.  Plymouth  County,  134  U.  S.  31; 
Fong  Yue  Ting  v.  United  States,  149  U.  S.  698;  Interstate  Commerce 
Commission  v.  Brimson,  154  U.  S.  447;  In  re  Chapman,  166  U.  S.  661; 
Adams  v.  New  York,  192  U.  S.  585;  Morris  v.  Hitchcock,  194  U.  S.  384; 
Public  Clearing  House  v.  Coyne,  194  U.  S.  497;  Interstate  Commerce 
Commission  v.  Baird,  194  U.  S.  25;  Jack  v.  Kansas,  199  U.  S.  372; 
Hale  v.  Henkel,  201  U.  S.  43;  Consolidated  Rendering  Co.  v.  Vermont, 
207  U.  S.  541 ;  American  Tobacco  Co.  v.  Werckmeiser,  207  U.  S.  284. 

[ARTICLE  v] 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  Grand  Jury,  except 
in  cases  arising  in  the  land  or  naval  forces,  or  in  the  Militia,  when  in 
actual  service  in  time  of  War  or  public  danger ;  nor  shall  any  person  be 
subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb; 
nor  shall  be  compelled  in  any  criminal  case  to  be  a  witness  against  him- 
self, nor  be  deprived  of  life,  liberty,  or  property,  without  due  process  of 


APPENDIX  639 

law;  nor  shall  private  property  be  taken  for  public  use,  without  just     APPENDIX 
compensation.  XX 

United  States  v.  Perez,  9  Wh.  579;  Barren  v.  The  City  of  Baltimore, 
7  Pet.  243;  Fox  v.  Ohio,  5  How.  410;  West  River  Bridge  Company  v. 
Dix  et  al.,  6  How.  507;  Mitchell  v.  Harmony,  13  How.  115;  Moore,  ex., 
t».  The  People  of  the  State  of  Illinois,  14  How.  13;  Murray's  Lessee  et 
al.  v.  Hoboken  Land  and  Improvement  Company,  18  How.  272; 
Dynes  v.  Hoover,  20  How.  65;  Withers  v.  Buckley  et  al.,  20  How.  84; 
Oilman  v.  The  City  of  Sheboygan,  2  Black,  510;  Ex  parte  Milligan,  4 
Wall.  2;  Twitchell  v.  The  Commonwealth,  7  Wall.  321;  Hepburn  r. 
Griswold,  8  Wall.  603;  Miller  v.  United  States,  11  Wall.  268;  Legal 
Tender  Cases,  12  Wall.  457;  Pumpelly  v.  Green  Bay  Company,  13 
Wall.  1 66;  Osborn  v.  Nicholson,  13  Wall.  654;  Ex  parte  Lange,  18  Wall 
163;  Kohl  et  al.  v.  United  States,  91  U.  S.  367;  Cole  v.  La  Grange,  113 
U.  S.  i;  Ex  parte  Wilson,  114  U.  S.  417;  Brown  v.  Grant,  116  U.  S. 
207;  Boyd  v.  United  States,  116  U.S.  616;  Mackin  v.  United  States,  117 
U.  S.  348;  Ex  parte  Bain,  121  U.  S.  i;  Parkinson  v.  United  States,  121 
U.  S.  281;  Spies  v.  Illinois,  123  U.  S.  131;  Sands  v.  Manistee  River  Im- 
provement Company,  123  U.  S.  288;  Mugler  v.  Kansas,  123  U.  S.  623; 
Great  Falls  Manufacturing  Company  v.  The  Attorney-General,  124 
U.  S.  581 ;  United  States  v.  De  Walt,  128  U.  S.  393;  Huling  v.  Kaw  Val- 
ley Railway  and  Improvement  Company,  130  U.  S.  559;  Freeland  v. 
Williams,  131  U.  S.  405;  Cross  v.  North  Carolina,  132  U.  S.  131;  Man- 
nings. French,  133  U.  S.  186;  Searles.  School  Dist.  No.  2, 133  U.  S.  553; 
Palmer  v.  McMahon,  133  U.  S.  660;  Eilenbecker  v.  Plymouth  County, 
134  U.  S.  31;  Chic.,  Mil.  &-St.  Paul  Rwy.  Co.  v.  Minnesota,  134 
U.  S.  418;  Wheeler  v.  Jackson,  137  U.  S.  245;  Holden  v.  Minnesota, 
137  U.  S.  245;  Caldwell  v.  Texas,  137  U.  S.  692;  Cherokee  Nation  v. 
Kansas  Ry.  Co.,  135  U.  S.  641 ;  Kaukauna  Water  Power  Co.  v.  Miss. 
Canal  Co.,  142  U.  S.  254;  New  Orleans  v.  N.  O.  Water  W'ks,  142  U.  S. 
79;  Counselman  v.  Hitchcock,  142  U.  S.  547;  Simmondss.  United  States, 
142  U.  S.  148;  Horn  Silver  Mining  Co.  v.  N.  Y.,  143  U.  S.  305;  Hallin- 
ger  v.  Davis,  146  U.  S.  314;  Shoemaker  v.  United  States,  147  U.  S. 
282;  Thorington  v.  Montgomery,  147  U.  S.  490;  Yesler  v.  Wash'n 
Harbor  Line  Coms'rs,  146  U.  S.  646;  Monongahela  Nav.  Co.  v.  United 
States,  148  U.  S.  312;  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698; 
In  re  Lennon,  150  U.  S.  393;  Pitts.  C.,  C.  &  St.  L.  v.  Backus,  154  U.  S. 
421 ;  Interstate  Com.  Comsn.  v.  Brimson,  154  U.  S.  447;  Pearce  v.  Texas, 

155  U.  S.  311;  Linford  v.  Ellison,  155  U.  S.  503;  Andrews  v.  Swartz, 

156  U.  S.  272;  Pittsburgh  &  Southern  Coal  Co.  v.  La.,  156  U.  S.  590; 
St.  L.  &  S.  F.  Rwy.  Co.  v.  Gill,  156  U.  S.  649;  Johnson  v.  Sayre,  158 
U.  S.  109;  Sweets.  Rechel,  159  U.  S.  380;  Browns.  Walker,  161  U.S. 
591;  Wong  Wings.  United  States,  163  U.  S.  228;  Talton  v.  Mayes,  163 
U.  S.  376;  Robertson  v.  Baldwin,  165  U.  S.  275;  Bauman  v.  Ross,  167 
U.  S.  548;  Wilson  v.  Lambert,  168  U.  S.  611;  Tinsley  v.  Anderson,  171 
U.  S.  101 ;  Green  Bay  &c.  Canal  Co.  v.  Patten  Paper  Co.,  172  U.  S.  58; 
Norwood  v.  Baker,  172  U.  S.  269;  Scranton  v.  Wheeler,  179  U.  S.  141; 
French  v.  Barber  Asphalt  Paving  Co.,  181  U.  8.324;  Wight  v.  Davidson, 
181  U.  S.  371;  Tonawanda  v.  Lyon,  181  U.  S.  389;  Capital  City  Dairy 
Co.  v.  Ohio,  183  U.  S.  238;  Hanover  National  Banks.  Moyses,  186  U.  S. 
181;  Dreyer  v.  Illinois,  187  U.  S.  71 ;  Lone  Wolf  v.  Hitchcock,  187  U.  S. 
5535  United  States  v.  Lynah,  188  U.  S.  445;  The  Japanese  Immigrant 
Case,  189  U.S.  86;  Hawaii  v.  Monkichi,  190  U.  S.  197;  Bedford  v.  United 


640  APPENDIX 

APPENDIX  States,  192  U.  S.  217;  Buttfield  v.  Stranahan,  192  U.  S.  470;  Adams  ». 

XX  New  York,  192  U.  S.  585;  Minneapolis  &  St.  Louis  R.  R.  Co.  v.  Minne- 

sota, 193  U.  S.  53;  Beavers  v.  Henkel,  194  U.  S.  73;  Morris  v.  Hitch- 
cock, 194  U.  S.  384;  Lloyd  v.  Dallison,  194  U.  S.  445;  Public  Clear- 
ing House  v.  Coyne,  194  U.  S.  497;  Turner  v.  Williams,  194  U.  S.  279; 
Shepard  v.  Barren,  194  U.  S.  553;  Interstate  Commerce  Commission 
v.  Baird,  194  U.  S.  25;  Kepner  v.  United  States,  195  U.  S.  100;  Mc- 
Cray  v.  United  States,  195  U.  S.  27;  Rassmussen  v.  United  States, 
197  U.  S.  516;  United  States  v.  Ju  Toy,  198  U.  S.  253;  Jack  v.  Kansas, 
199  U.  S.  372;  South  Carolina  v.  United  States,  199  U.  S.  437;  Trono 
v.  United  States,  199  U.  S.  521;  Chicago,  B.  &  Q.  Ry.  Co.  v.  Drainage 
Commissioners,  200  U.  S.  561;  Southern  Pacific  R.  R.  Co.  v.  United 
States,  200  U.  S.  341;  Howard  v.  Kentucky,  200  U.  S.  164;  Hale  ». 
Henkel,  201  U.  S.  43;  McAlister  v.  Henkel,  201  U.  S.  90;  Nelson  v. 
United  States,  201  U.  S.  92;  Sawyer  v.  United  States,  202  U.  S.  150; 
Matter  of  Moran,  203  U.  S.  96;  Union  Bridge  Co.  v.  United  States, 
204  U.  S.  364;  Martin  v.  District  of  Columbia,  205  U.  S.  135;  Barring- 
ton  v.  Missouri,  205  U.  S.  483;  United  States  v.  Heinszen,  206  U.  S. 
370;  Ellis  v.  United  States,  206  U.  S.  246;  Graf  ton  v.  United  States, 
206  U.  S.  333;  Hunter  v.  Pittsburgh,  207  U.  S.  161;  Taylor  v.  United 
States,  207  U.  S.  120;  Shoener  v.  Pennsylvania,  207  U.  S.  188;  Con- 
solidated Rendering  Co.  v.  Vermont,  207  U.  S.  541 ;  American  Tobacco 
Co.  v.  Werckmeister,  207  U.  S.  284;  Adair  v.  United  States,  204 
U.  S.  161 ;  Bassing  v.  Cady,  208  U.  S.  386;  Twining  v.  New  Jersey,  211 
U.  S.  78;  United  States  ex  rel.  Atty.  Gen.  v.  Delaware  &  H.  Co.,  213 
U.S,366. 

[ARTICLE  vi] 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed,  which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of  the  nature 
and  cause  of  the  accusation ;  to  be  confronted  with  the  witnesses  against 
him ;  to  have  compulsory  process  for  obtaining  witnesses  in  his  favour, 
and  to  have  the  Assistance  of  Counsel  for  his  defence. 

United  States  v.  Cooledge,  i  Wh.  415;  Ex  parte  Kearney,  7  Wh.  38; 
United  States  v.  Mills,  7  Pet.  142;  Barren  ».  City  of  Baltimore,  7  Pet. 
243;  Fox  v.  Ohio,  5  How.  410;  Withers  v.  Buckley  et  al.,  20  How.  84; 
Ex  parte  Milligan,  4  Wall.  2;  Twitchell  v.  The  Commonwealth,  7  Wall. 
321;  Miller  v.  The  United  States,  n  Wall.  268;  United  States  v.  Cook, 
17  Wall.  168;  United  States  v.  Cruikshank  et  al.,  92  U.  S.  542;  Spies 
v.  Illinois,  123  U.  S.  131;  Eilenbecker  v.  Plymouth  Co.,  134  U.  S.  31; 
Jones  v.  United  States,  137  U.  S.  202;  Cook  v.  United  States,  138  U.  S. 
157;  In  re  Ross,  140  U.  S.  453;  Hallinger  v.  Davis,  146  U.  S.  314;  Mat- 
tox  v.  United  States,  156  U.  S.  237;  Bergemann  v.  Becker,  157  U.  S. 
655;  Rosen  ».  United  States,  161  U.  S.  29;  United  States  ».  Zucker,  161 
U.  S.  475;  Wong  Wing  v.  United  States,  163  U.  S.  228;  Motes  v.  United 
States,  178  U.  S.  458;  Fidelity  and  Deposit  Co.  v.  United  States,  187 
U.  S.  315;  Hawaii  t».  Mankichi,  190  U.  S.  197;  Lloyd  v.  Dallison,  194 
U.  S.  445;  West  v.  Louisiana,  194  U.  S.  258;  Turner  v.  Williams,  194 
U.  S.  279;  Schick  v.  United  States,  195  U.  S.  65;  Dorr  v.  United  States, 
195  U.  S.  138;  Rassmussen  v.  United  States,  197  U.  S.  516;  Beavers  v. 
Haubert,  198  U.  S.  77;  Marvin  v.  Trout,  199  U.  S.  212;  Jack  v.  Kansas, 


APPENDIX  641 

199  U.  S.  372;  Martin  v.  Texas,  200  U.  S.  316;  Howard  v.  Kentucky,      APPENDIX 

200  U.  S.  164;  Sawyer  v.  United  States,  202  U.  S.  150;  Tinsley  v.  Treat,  XX 
205  U.  S.  20;  Ughbanks  v.  Armstrong,  208  U.  S.  481;  Armour  Packing 

Co.  v.  United  States,  209  U.  S.  56. 

[ARTICLE  vn] 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact 
tried  by  a  jury,  shall  be  otherwise  reexamined  in  any  Court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law. 

United  States  v.  La  Vengeance,  3  Ball.  297;  Bank  of  Columbia  p. 
Okely,  4  Wh.  235;  Parsons  v.  Bedford  et  al.,  3  Pet.  433;  Lessee  of 
Livingston  v.  Moore  et  al.,  7  Pet.  469;  Webster  v.  Reid,  u  How.  437; 
State  of  Pennsylvania  v.  The  Wheeling,  &c.,  Bridge  Company  et  al., 
13  How.  518;  The  Justices  v.  Murray,  9  Wall.  274;  Edwards  v.  Elliott 
et  al.,  21  Wall.  532;  Pearson  v.  Yewdall,  95  U.  S.  294;  McElrath  v. 
United  States,  102  U.  S.  426;  Callan  v.  Wilson,  127  U.  S.  540;  Ark. 
Valley  Land  and  Cattle  Co.  v.  Mann,  130  U.  S.  69;  Whitehead  v.  Shat- 
tuck,  138  U.  S.  146;  Scott  v.  Neely,  140  U.  S.  106;  Gates  v.  Allen,  149 
U.  S.  451;  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698;  Chappell 
v.  United  States,  160  U.  S.  499;  Coughran  v.  Bigelow,  164  U.  S.  301; 
Walker  v.  New  Mexico  &  Southern  Pacific  Railroad,  165  U.  S.  593; 
Chicago,  Burlington  &  Quincy  v.  Chicago,  166  U.  S.  226;  American 
Pub.  Co.  v.  Fisher,  166  U.  S.  464;  Guthrie  Ntl.  Bank  v.  Guthrie,  173 
U.  S.  528;  Rassmussen  v.  United  States,  197  U.  S.  516;  Marvin  v. 
Trout,  199  U.  S.  212;  Jack  v.  Kansas,  199  U.  S.  372;  Fidelity  Mutual 
Life  Ins.  Co.  v.  Clark,  203  U.  S.  64. 

[ARTICLE  vm] 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 

Pervear  i>.  Commonwealth,  5  Wall.  475;  Manning  v.  French,  133 
U.  S.  186;  Eilenbecker  v.  Plymouth  County,  134  U.  S.  31;  In  re 
Kemmler,  136  U.  S.  436;  McElvaine  v.  Brush,  142  U.  S.  155;  O'Neill  v. 
Vermont,  144  U.  S.  323;  McDonald  v.  Massachusetts,  180  U.  S. 
311;  Jack  v.  Kansas,  199  U.  S.  372;  Ughbanks  v.  Armstrong,  208  U.  S. 
481. 

[ARTICLE  ix] 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the  people. 

Lessee  of  Livingston  v.  Moore  et  al.,  7  Pet.  469. 

[ARTICLE  x] 

The  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively, 
or  to  the  people. 

Chisholm,  ex.,  v.  State  of  Georgia,  2  Dall.  419;  Hollingsworth  et  al. 


642  APPENDIX 

APPENDIX  v.  The  State  of  Virginia,  3  Dall.  378;  Martin  v.  Hunter's  Lessee,  I 

XX  Wh.  304;  McCulloch  v.  State  of  Maryland,  4  Wh.  316;  Anderson  0. 

Dunn,  6  Wh.  204;  Cohens  v.  Virginia,  6  Wh.  264;  Osborn  v.  United 
States  Bank,  9  Wh.  738;  Buckner  v.  Finley,  2  Pet.  586;  Ableman  v. 
Booth,  21  How.  506;  The  Collector  v.  Day,  n  Wall.  113;  Claflin  v. 
Houseman,  assignee,  93  U.  S.  130;  Inman  Steamship  Company  v. 
Tinker,  94  U.  S.  238;  Church  v.  Kelsey,  121  U.  S.  282;  Ouachita  Packet 
Co.  v.  Aiken,  121  U.  S.  444;  W.  U.  Tel.  Co.  v.  Pendleton,  122  U.  S.  347; 
Bowman  v.  Chicago  and  Northwestern  Rwy  Co.,  125  U.  S.  465;  Mahon 
v.  Justice,  127  U.  S.  700;  Leisy  v.  Hardin,  135  U.  S.  100;  Manchester 
v.  Mass.,  139  U.  S.  240;  Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157  U. 
S.  429;  Forsyth  v.  Hammond,  166  U.  S.  506;  St.  Anthony  Falls  Water 
Power  Co.  v.  St.  Paul  Water  Commissioners,  168  U.  S.  349;  Missouri 
Kansas  &  Texas  Railway  Co.  v.  Haber,  169  U.  S.  613;  Hancock  Mutual 
Life  Ins.  Co.  v.  Warren,  181  U.  S.  73;  Kansas  v.  Colorado,  185  U.  S. 
125;  Andrews  v.  Andrews,  188  U.  S.  14;  Northern  Securities  Co.  ». 
United  States,  193  U.  S.  197;  Turner  v.  Williams,  194  U.  S.  279;  Mc- 
Cray  v.  United  States,  195  U.  S.  27;  Central  of  Georgia  Ry.  Co.  v. 
Murphey,  196  U.  S.  194;  Matter  of  Heff  (Indian),  197  U.  S.  488;  South 
Carolina  v.  United  States,  199 U.  S.  437;  Jack  v.  Kansas,  199  U.  S.  372; 
Hodges  v.  United  States,  203  U.  S.  i;  Kansas  v.  Colorado,  206  U.  S.  46. 

ARTICLE  XI  1 

The  Judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  Citizens  of  another  State,  or  by  Citizens  or 
Subjects  of  any  Foreign  State. 

State  of  Georgia  v.  Brailsford  et  al.,  2  Dall.  402;  Chisholm,  ex., 
v.  State  of  Georgia,  2  Dall.  419;  Hollingsworth  et  al.  v.  Virginia,  3  Dall. 
378;  Cohens  v.  Virginia,  6  Wh.  264;  Osborn  v.  Bank  of  United  States,  9 
Wh.  738 ;  Bank  of  United  States  v.  The  Planters'  Bank,  9  Wh.  904;  The 
Governor  of  Georgia  v.  Juan  Madrazo,  I  Pet.  no;  Cherokee  Nation  v. 
State  of  Georgia,  5  Pet.  I ;  Briscoe  v.  The  Bank  of  the  Commonwealth 
of  Kentucky,  n  Pet.  257;  Curran  v.  State  of  Arkansas  et  al.,  15  How. 
304;  New  Hampshire  v.  Louisiana,  108  U.  S.  76;  Virginia  Coupon  Cases, 
114  U.  S.  270;  Hagood  v.  Southern,  117  U.  S.  52;  In  re  Ayres,  123  U.  S. 
443;  Lincoln  County  v.  Luning,  133  U.  S.  527;  Coupon  Cases,  135  U.  S. 
662;  Pennoyer  v.  McConnaughy,  140  U.  S.  i;  In  re  Tyler,  149  U.  S. 
164;  Reagan  v.  Farmers'  Loan  and  Trust  Co.,  154  U.  S.  362;  Reagan 
v.  Mercantile  Trust  Co.,  154  U.  S.  413;  Scott  v.  Donald,  165  U.  S.  58; 
Tindal  v.  Wesley,  167  U.  S.  204;  Smyth  v.  Ames,  169  U.  S.  466;  Fitts 
v.  McGhee,  172  U.  S.  516;  Louisiana  v.  Texas,  176  U.  S.  i;  Smith  v. 
Reeves,  178  U.  S.  436;  Scranton  v.  Wheeler,  179  U.  S.  141;  Illinois 
Central  Railroad  Co.  v.  Adams,  180  U.  S.  28;  Prout  v.  Starr,  188  U.  S. 
537;  South  Dakota  v.  North  Carolina,  192  U.  S.  286;  Chandler  v.  Dix, 

1  The  Eleventh  Amendment  to  and  was  declared  in  a  message  from 

the  Constitution  of  the  United  States  the  President  to  Congress,  dated 

was  proposed  to  the  legislatures  of  the  8th  of  January,  1798,  to  have 

the  several  states  by  the  Third  Con-  been  ratified  by  the  legislatures  of 

gress,  on  the  5th  of  March,  1794;  three  fourths  of  the  states. 


APPENDIX  643 

194  U.  S.  590;  Jacobson  v.  Massachusetts,  197  U.  S.  n;  Graham  v.      APPENDIX 
Folsom,  200  U.  S.  248;  Gunter  v.  Atlantic  Coast  Line,  200  U.  S.  273;  XX 

McNeill  v.  Southern  Railway  Co.,  202  U.  S.  543;  Mississippi  R.  R. 
Commission  v.  Illinois  Central  R.  R.,  203  U.  335;  Scully  v.  Bird,  209 
U.  S.  481 ;  Ex  parte  Young,  209  U.  S.  123. 

ARTICLE  XII  l 

The  Electors  shall  meet  in  their  respective  states  and  vote  by  ballot 
for  President  and  Vice-President,  one  of  whom,  at  least,  shall  not  be 
an  inhabitant  of  the  same  state  with  themselves;  they  shall  name  in 
their  ballots  the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President,  and  they  shall  make  distinct 
lists  of  all  persons  voted  for  as  President,  and  of  all  persons  voted  for 
as  Vice-President,  and  of  the  number  of  votes  for  each,  which  lists 
they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the  gov- 
ernment of  the  United  States,  directed  to  the  President  of  the  Senate; 
—  The  President  of  the  Senate  shall,  in  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates  and  the  votes  shall 
then  be  counted ;  —  The  person  having  the  greatest  number  of  votes 
for  President,  shall  be  the  President,  if  such  number  be  a  major- 
ity of  the  whole  number  of  Electors  appointed;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the  highest  numbers 
not  exceeding  three  on  the  list  of  those  voted  for  as  President,  the  House 
of  Representatives  shall  choose  immediately,  by  ballot,  the  President. 
But  in  choosing  the  President,  the  votes  shall  be  taken  by  states,  the 
representation  from  each  state  having  one  vote;  a  quorum  for  this  pur- 
pose shall  consist  of  a  member  or  members  from  two  thirds  of  the  states, 
and  a  majority  of  all  the  states  shall  be  necessary  to  a  choice.  And  if 
the  House  of  Representatives  shall  not  choose  a  President  whenever 
the  right  of  choice  shall  devolve  upon  them,  before  the  fourth  day  of 
March  next  following,  then  the  Vice-President  shall  act  as  President, 
as  in  the  case  of  the  death  or  other  constitutional  disability  of  the 
President.  —  The  person  having  the  greatest  number  of  votes  as  Vice- 
President,  shall  be  the  Vice-President,  if  such  number  be  a  majority  of 
the  whole  number  of  Electors  appointed,  and  if  no  person  have  a  ma- 
jority, then  from  the  two  highest  numbers  on  the  list,  the  Senate  shall 
choose  the  Vice-President;  a  quorum  for  the  purpose  shall  consist  of 
two  thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice.  But  no  person  constitu- 
tionally ineligible  to  the  office  of  President  shall  be  eligible  to  that  of 
Vice-President  of  the  United  States. 

In  re  Green,  134  U.  S.  377. 

1  The  Twelfth  Amendment  to  the  second  article;  and  was  declared,  in 

Constitution  of  the  United  States  a  proclamation  of  the  Secretary  of 

was  proposed  to  the  legislatures  of  State,  dated  the  25th  of  September, 

the  several  States  by  the  Eighth  1804,  to  have  been  ratified  by  the 

Congress,  on  the  I2th  of  December,  legislatures  of  three  fourths  of  the 

1803,  in  lieu  of  the  original  third  States, 
paragraph  of  the  first  section  of  the 


644 


APPENDIX 


APPENDIX 
XX 


ARTICLE  XIII  l 

SECTION  I.  Neither  slavery  nor  involuntary  servitude,  except  as 
a  punishment  for  crime  whereof  the  party  shall  have  been  duly  con- 
victed, shall  exist  within  the  United  States,  or  any  place  subject  to  their 
jurisdiction. 

SECTION  2.  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

Dred  Scott  v.  Sandford,  19  How.  393;  White  v.  Hart,  13  Wall.  646; 
Osborn  t>.  Nicholson,  13  Wall.  654;  Slaughter- House  Cases,  16  Wall.  36; 
Ex  parte  Virginia,  100  U.  S.  339;  Civil  Rights  Case,  109  U.  S.  3;  Plessy 
v.  Ferguson,  163  U.  S.  537;  Robertson  v.  Baldwin,  165  U.  S.  275; 
Clyatt  v.  United  States,  197  U.  S.  207;  Hodges  v.  United  States,  203 
U.  S.  i. 

ARTICLE   XIV2 

SECTION  I.  All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside.  No  State  shall  make  or  enforce  any 


1  The  Thirteenth  Amendment  to 
thelConstitution  of  the  United  States 
was  proposed  to  the  legislatures  of 
the  several  States  by  the  Thirty- 
eighth  Congress,  on  the  1st  of  Feb- 
ruary, 1865,  and  was  declared,  in  a 
proclamation  of  the  Secretary  of 
State,  dated  the  i8th  of  December, 

1865,  to  have  been  ratified  by  the 
legislatures  of  twenty-seven  of  the 
thirty-six  states,  viz:  Illinois,  Rhode 
Island,   Michigan,  Maryland,   New 
York,  West  Virginia,  Maine,  Kansas, 
Massachusetts,  Pennsylvania,  Vir- 
ginia, Ohio,  Missouri,  Nevada,  Indi- 
ana,   Louisiana,    Minnesota,    Wis- 
consin, Vermont,  Tennessee,  Arkan- 
sas, Connecticut,  New  Hampshire, 
South   Carolina,   Alabama,    North 
Carolina,  and  Georgia. 

z  The  Fourteenth  Amendment  to 
the  Constitution  of  the  United  States 
was  proposed  to  the  legislatures  of 
the  several  states  by  the  Thirty- 
ninth  Congress,  on  the  i6th  of  June, 

1866.  On  the  2 ist  of  July,  1868, 
Congress  adopted  and  transmitted 
to  the  Department  of  State  a  con- 
current   resolution    declaring    that 
"the   legislatures  of  the  States   of 
Connecticut,  Tennessee,  New  Jer- 
sey, Oregon,  Vermont,  New  York, 


Ohio,  Illinois,  West  Virginia,  Kan- 
sas, Maine,  Nevada,  Missouri,  In- 
diana, Minnesota,  New  Hampshire, 
Massachusetts,  Nebraska,  Iowa,  Ar- 
kansas, Florida,  North  Carolina, 
Alabama,  South  Carolina,  and  Louis- 
iana, being  three  fourths  and  more 
of  the  several  States  of  the  Union, 
have  ratified  the  fourteenth  article 
of  amendment  to  the  Constitution 
of  the  United  States,  duly  proposed 
by  two  thirds  of  each  House  of  the 
Thirty- ninth  Congress:  Therefore 
Resolved,  That  said  fourteenth  art- 
icle is  hereby  declared  to  be  a  part 
of  the  Constitution  of  the  United 
States,  and  it  shall  be  duly  promul- 
gated as  such  by  the  Secretary  of 
State."  The  Secretary  of  State  ac- 
cordingly issued  a  proclamation, 
dated  the  28th  of  July,  1868,  declar- 
ing that  the  proposed  fourteenth 
amendment  had  been  ratified,  in  the 
manner  hereafter  mentioned,  by  the 
legislatures  of  thirty  of  the  thirty- 
six  states,  viz:  Connecticut,  June 30, 
1866;  New  Hampshire,  July  7, 1866; 
Tennessee,  July  19,  1866;  New  Jer- 
sey, September  n,  1866  (and  the 
legislature  of  the  same  state  passed 
a  resolution  in  April,  1868,  to  with- 
draw its  consent  to  it);  Oregon, 


"APPENDIX  645 

law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  *  APPENDIX 
United  States;  nor  shall  any  State  deprive  any  person  of  life,  liberty,  XX 

or  property,  without  due  process  of  law ;  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws. 

Strauder  v.  West  Virginia,  100  U.  S.  303;  Virginia  t;.  Rives,  100 
U.  S.  313;  Ex  parte  Va.,  100  U.  S.  339;  Missouri  v.  Lewis,  101  U.  S.  22; 
Civil  Rights  Cases,  109  U.  S.  3;  Louisiana  v.  New  Orleans,  109  U.  S. 
285;  Hurtado  v.  California,  no  U.  S.  516;  Hagarv.  Reclamation  Dist., 
in  U.  S.  701;  Elk  v.  Wilkins,  112  U.  S.  94;  Head  v.  Amoskeag  Mfg. 
Co.,  113  U.  S.  9;  Barbier  v.  Connolly,  113  U.  S.  27;  Provident  Inst. 
v.  Jersey  City,  113  U.  S.  506;  Soon  Ring  v.  Crowley,  113  U.  S.  703; 
Wurts  v.  Hoagland,  114  U.  S.  606;  Ky.  R.  Rd.  Tax  Cases,  115  U.  S. 
321;  Campbell  v.  Holt,  115  U.  S.  620;  Presser  v.  Illinois,  116  U.  S.  252; 
Stone  v.  Farmers'  Loan  and  Trust  Co.,  116  U.  S.  307;  Arrowsmith 
v.  Harmoning,  118  U.  S.  194;  Yick  Wo  v.  Hopkins,  118  U.  S.  356;  Santa 
Clara  Co.  v,  S.  Pacific  R.  Rd.,  118  U.  S.  394;  Phila.  Fire  Assn.  v.  N.  Y., 
119  U.  S.  no;  Schmidt  v.  Cobb,  119  U.  S.  286;  Baldwin  v.  Franks  120 
U.  S.  678;  Hayes  v.  Missouri,  120  U.  S.  68;  Church  v.  Kelsey,  121  U.  S. 
282;  Pembina  Mining  Co.  v.  Penna.,  125  U.  S.  181 ;  Spencers.  Merchant, 
125  U.  S.  345;  Dow  v.  Beidelman,  125  U.  S.  680;  Bank  of  Redemption  v. 
Boston,  125  U.  S.  60;  Ro  Bards  v.  Lamb,  127  U.  S.  58;  Mo.  Pac.  Rwy. 
Co.  v.  Mackey,  127  U.  S.  205;  Minneapolis  and  St.  Louis  Rwy.  v. 
Herrick,  127  U.  S.  210;  Powell  v.  Penna.,  127  U.  S.  678;  Kidd  v.  Pearson 
128  U.  S.  i;  Nashville,  Chattanooga,  &c.,  Rwy.  v.  Alabama,  128  U.  S. 
96;  Walston  v.  Nevin,  128  U.  S.  578;  Minneapolis  and  St.  Louis  Rwy. 
v.  Beckwith,  129  U.  S.  26;  Dent  v.  West  Va.,  129  U.  S.  114;  Huling  p. 
Kaw  Valley  Rwy.  and  Improvement  Co.,  130  U.  S.  559;  Freeland  v. 
Williams,  131  U.  S.  405;  Cross  v.  North  Carolina,  132  U.  S.  131 ;  Pennie 
v.  Reis,  132  U.  S.  464;  Sugg  v.  Thornton,  132  U.  S.  524;  Davis  v.  Bea- 
son,  133  U.  S.  333;  Eilenbecker  v.  Plymouth  Co.,  134  U.  S.  31;  Bell 
Gap  R.  Rd.  Co.  v.  Penna.,  134  U.  S.  232;  Chicago,  Milwaukee  &  St. 

September  19,  1866;  Vermont,  No-  ruary  7,  1867;  Wisconsin,  February 

vember  9,  1866;  Georgia  rejected  it  13,    1867;   Pennsylvania,   February 

November  13,  1866,  and  ratified  it  13,   1867;  Michigan,  February  15, 

July  21,  1868;  North  Carolina  re-  1867;    Massachusetts,    March    20, 

jected  it  December  4,  1866,  and  rati-  1867;  Nebraska,  June  15,1867;  Iowa, 

fied  it  July  4,  1868;  South  Carolina  April  3,   1868;  Arkansas,   April  6, 

rejected  it  December  20,  1866,  and  1868;  Florida,  June  8,  1868;  Louisi- 

ratified  it  July  9,  1868;  New  York  ana,  July  9,  1868;  and  Alabama, 

ratified  it  January  10,  1867;  Ohio  July  13,  1868.    Georgia  again  rati- 

ratified  it  January  II,  1867  (and  the  fied   the   amendment   February   2, 

legislature  of  the  same  state  passed  1870.    Texas  rejected  it  November 

a  resolution  in   January,   1868,  to  I,  1866,  and  ratified  it  February  1 8, 

withdraw  its  consent  to  it) ;    Illinois  1870.    Virginia  rejected  it  January 

ratified  it  January  15,  1867;    West  19,  1867,  and  ratified  it  Octobers, 

Virginia,  January  16,  1867;  Kansas,  1869.  The  amendment  was  rejected 

January  18,  1867;  Maine,  January  by  Kentucky  January  10,  1867;  by 

19, 1867;  Nevada,  January  22,  1867;  Delaware,  February    8,    1867;  by 

Missouri,  January  26, 1867;  Indiana,  Maryland,    March   23,    1867,    and 

January  20,  1867;  Minnesota,  Feb-  was  not  afterwards  ratified  by  either 

ruary  i,  1867;  Rhode  Island,  Feb-  state. 


646  APPENDIX 

APPENDIX  Paul  Rwy.  v.  Minnesota,  134  U.  S.  418;  Home  Ins.  Co.  v.  N.  Y.,  134 

XX  U.  S.  594;  Louisville  &  Nashville  R.  Rd.  Co.  v.  Woodson,  134  U.  S. 

614;  Leisy  v.  Hardin,  135  U.  S.  100;  In  re  Kemmler,  136  U.  S.  436; 
York  v.  Texas,  137  U.  S.  15;  Crowley  v.  Christensen,  137  U.  S.  89; 
Wheeler  v.  Jackson,  137  U.  S.  245;  Holden  v.  Minnesota,  137  U.  S. 
483;  In  re  Converse,  137  U.  S.  624;  Caldwellv.  Texas,  137  U.  S.  692; 
Kauffman  v.  Wooters,  138  U.  S.  285;  Leeper  v.  Texas,  139  U.  S.  462; 
In  re  Manning,  139  U.  S.  504;  Natal  v.  Louisiana,  139  U.  S.  621;  In 
re  Duncan,  139  U.  S.  449;  In  re  Shibuya  Jugiro,  139  U.  S.  291;  Lent 
v.  Tillson,  140  U.  S.  316;  New  Orleans  v.  N.  O.  Water  W'ks,  142 
U.  S.  79;  McElvaine  v.  Brush,  142  U.  S.  155;  Kaukauna  Water  Power 
Co.  v.  Miss.  Canal  Co.,  142  U.  S.  254;  Charlotte,  Augusta  &  Col. 
R.  Rd.  Co.  v.  Gibbes,  142  U.  S.  386;  Pacific  Ex.  Co.  v.  Siebert,  142 
U.  S.,  339  ;  Horn  Silver  Mining  Co.  v.  N.  Y.,  143  U.  S.  305;  Budd 
t?.  N.  Y.,  143  U.  S.  517;  Schwab  v.  Berggren,  143  U.  S.  442;  Fielden 
v.  Illinois,  143  U.  S.  452;  N.  Y.  v.  Squire,  144  U.  S.  175;  Brown  v. 
Smart,  144  U.  S.  454;  McPherson  v.  Blacker,  146  U.  S.  i;  Morley  v. 
Lake  Shore  &  Mich.  Southern  Ry.  Co.,  146  U.  S.  162;  Hallinger 
v.  Davis,  146  U.  S.  314;  Yeslerv.  Washington  Harbor  Line  Com'rs., 
146  U.  S.  646;  Butler  v.  Goreley,  146  U.  S.  303;  Southern  Pacific  Co. 
v.  Denton,  146  U.  S.  202;  Thorington  v.  Montgomery,  147  U.  S.  490; 
Giozza  v.  Tiernan,  148  U.  S.  657;  Paulsen  v.  Portland,  149  U.  S.  30; 
Minn.  &  St.  L.  Rwy.  Co.  v.  Emmons,  149  U.  S.  364;  Columbus  So. 
Rwy.  Co.  v.  Wright,  151  U.  S.  470;  In  re  Frederick,  149  U.  S.  70;  Mc- 
Nulty  t».  Calif.,  149  U.  S.  645;  Lees  v.  United  States,  150  U.  S.  476; 
Lawton  v.  Steele,  152  U.  S.  133;  Montana  Co.  v.  St.  Louis  Mining 
Co.,  152  U.  S.  160;  Duncan  v.  Missouri,  152  U.  S.  377;  McKane  v. 
Durston,  153  U.  S.  684;  Marchant  v.  Penna.  R.  R.  Co.,  153  U.  S.  380; 
Brass  v.  Stoeser,  153  U.  S.  391 ;  Scott  v.  McNeal,  154  U.  S.  34;  Reagan 
v.  Far.  Loan  &  Trust  Co.,  154  U.  S.  362;  P.,  C.,  C.  &  St.  L.  R.  R.  Co., 
p.  Backus,  154  U.  S.  421;  Interstate  Com.  Comsn.  i>.  Brimson,  154  U.  S. 
447;  Reagan  v.  Mercantile  Trust  Co.,  154  U.  S.  447;  Pearce  v.  Texas, 
155  U.  S.  311 ;  Pittsburg  &  So.  Coal  Co.  v.  La.,  156  U.  S.  590;  Andrews 
v.  Swartz,  156  U.  S.  272;  St.  L.  &  S.  F.  Rwy.  Co.  v.  Gill,  156  U.  S.  649; 
Stevens,  admr.,  v.  Nichols,  157  U.  S.  370;  Beremann  v.  Begcker,  157 
U.  S.  655;  In  re  Quarles  and  Butler,  158  U.  S.  532;  Gray  v.  Connecticut, 

159  U.  S.  74;  Central  Land  Co.  v.  Laidley,  159  U.  S.  103;  Moore  v.  Mis- 
souri, 159  U.  S.  673;  Winona  &  St.  Peter  Land  Co.  v.  Minn.,  159  U.  S. 
528;  Iowa  Cent.  Ry.  Co.  v.  Iowa,  160  U.  S.  389;  Eldridge  v.  Trezevant, 

160  U.  S.  452;  Laing  v.  Rigney,  160  U.  S.  531;  Gibson  v.  Miss.,  162 
U.  S.  565;  Western  Union  Telegraph  Co.  v.  Taggart,  163  U.  S.  i; 
Lowe  v.  Kansas,  163  U.  S.  81;  Plessy  t;.  Ferguson,  163  U.  S.  537;  Tal- 
ton  v.  Mayes,  163  U.  S.  376;  Fallbrook  Irrigation  District  v.  Bradley, 
164  U.  S.    112;   Mo.   Pac.   Ry.   Co.  v.   Nebraska,    164  U.   S.   403; 
Covington  &c.  Turnpike  Co.  t;.  Sandford,   164  U.  S.  578;  St.  Louis 
&c.  Ry.  Co.  v.  Mathews,  165  U.  S.  i;  Gulf  &c.  Ry.  Co.  v.  Ellis,  165 
U.  S.  150;  Jones  v.  Brim,  165  U.  S.  180;  Adams  Ex.  Co.  v.  Ohio,  165 
U.  S.  194;  Western  Union  Tel.  Co.  v.  Indiana,  165  U.  S.  304;  Allgeyer 
v.  Louisiana,  165  U.  S.  578;  Allen  v.  Georgia,  166  U.  S.  138;  Chicago 
&c.  R.  R.  Co.  v.  Chicago,  166  U.  S.  226;  Gladson  v.  Minn.,  166  U.  S. 
427;  Sentell  v.  New  Orleans  &c.  R.  R.  Co.,  166  U.  S.  698;  Davis  v. 
Mass.,  167  U.  S.  43;  Turner  v.  New  York,  168  U.  S.  90;  Hodgson  v. 
Vermont,  168  U.  S.  262;  Nobles  v.  Georgia,  168  U.  S.  398;  McHenry 


APPENDIX  647 

v,  Alford,  168  U.  S.  651;  Holden  v.  Hardy,  169  U.  S.  366;  Savings      APPENDIX' 

&  Loan  Society  v.  Multnomah  County,  169  U.  S.  421 ;  Smyth  v.  Ames,  XX 

169  U.  S.  466;  Wilson  v.  North  Carolina,  169  U.  S.  586;  United  States 

v.  Wong  Kim  Ark,  169  U.  S.  649;  Williams  v.  Miss.,  170  U.  S.  213; 

Galveston  &c.  Ry.  Co.  v.  Texas,  170  U.  S.  226;  Magoun  v.  111.  Trust  & 

Savings  Bank,  170  U.  S.  283;  Williams  v.  Eggleston,  170  U.  S.  304; 

Tinsley  v.  Anderson,  171  U.  S.  101;  King  v.  Mullins,  171  U.  S.  404; 

New  York  v.  Roberts,  171  U.  S.  658;  Meyer  v.  Richmond,  172  U.  S. 

82;  Blake  v.  McClung,  172  U.  S.  239;  Orient  Ins.  Co.  v.  Daggs,  172 

U.  S.  557;  Wilson  v.  Eureka  City,  173  U.  S.  32;  Central  Loan  &  Trust 

Co.  v.  Campbell  Commission  Co.,  173  U.  S.  84;  Dewey  v.  Des  Moines, 

173  U.  S.  193;  St.  Louis  &c.  Ry.  Co.  v.  Paul,  173.  U.  S.  404;  Henderson 

Bridge  Co.  v.  Henderson  City,  173  U.  S.  592;  Lake  Shore  &c.  Ry.  Co. 

v.  Smith,  173  U.  S.  684;  Atchison  &c.  R.  R.  Co.  v.  Matthews,  174 

U.  S.  96;  Brown  v.  N.  J.,  175  U.  S.  172;  Tullis  v.  Lake  Erie  &c.  R.  R. 

Co.,  175  U.  S.  348;  Cumming  v.  Richmond  County  Board  of  Education, 

175  U.  S.  528;  Bolln  v.  Nebraska,  176  U.  S.  83;  Clark  v.  Kansas  City, 

176  U.  S.  114;  Roller  v.  Holly,  176  U.  S.  398;  Weyerhaueser  v.  Minn., 

176  U.  S.  550;  Maxwell  v.  Dow,  176  U.  S.  581;  Gundling  v.  Chicago, 

177  U.  S.  183;  Ohio  Oil  Co.  v.  Indiana,  177  U.  S.'IQO;  Louisville,  &c., 
R.  R.  Co.  v.  Schmidt,  177  U.  S.  230;  Saranac  Land  &  Timber  Co.  v. 
Comptroller  of  N.  Y.,  177  U.  S.  318;  Carter  v.  Texas,  177  U.  S.  442; 
L'Hote  v.  New  Orleans,  177  U.  S.  587;  Sully  v.  Am.  Ntl.  Bank,  178 
U.  S.  289;  Wheeler  v.  New  York  &c.  R.  R.  Co.,  178  U.  S.  321;  Taylor 
v.  Beckham,  178  U.  S.  548;  Am.  Sugar  Refining  Co.  v.  Louisiana,  179 
U.  S.  89;  Williams  v.  Fears,  179  U.  S.  270;  New  York  v.  Barker,  179 
U.  S.  279;  Wisconsin  &c.  R.  R.  Co.  v.  Jacobson,  179  U.  S.  287;  Mason 
v.  Missouri,  179  U.  S.  328;  Devine  v.  Los  Angeles,  202  U.  S.  313; 
Cox  v.  Texas,  202  U.  S.  446;  National  Council  v.  State  Council,  203 
U.  S.   151;  St.  Mary's  Petroleum  Co.  v.  West  Virginia,  203  U.  S.  183; 
Northwestern  Life  Ins.  Co.  v.  Riggs,  203  U.  S.  243;  Atlantic  Coast 
Line  v.  Florida,  203  U.  S.  256;  Seaboard  Air  Line  v.  Florida,  203  U.  S. 
261;  Fairhaven  &  Westville  R.  R.  Co.,  v.  New  Haven,  203  U.  S.  379; 
Cahen  v.  Brewster,  203  U.  S.  543;  Gatewood  v.  North  Carolina,  203 
U.  S.  531;  Security  Trust  Co.  v.  Lexington,  203  U.  S.  323;  Martin 
v.  Pittsburg  &  Lake  Erie  R.  R.,  203  U.  S.  284;  Board  of  Education  v. 
Illinois,  203  U.  S.  553;  Hodges  v.  United  States,  203  U.  S.  i;  Ala- 
bama &  Vicksburg  Railway  Co.  v.   Mississippi  R.  R.  Commission, 

203  U.  S.  496;  Hatch  v.  Reardon,  204  U.  S.  152;  Ballard  v.  Hunter, 

204  U.  S.  241;  Western  Turf  Association  v.  Greenberg,  204  U.  S.  359; 
Cleveland  Electric    Railway  Co.  v.  Cleveland,  204  U.  S.  116;   Old 
Wayne  Life  Association  v.  McDonough,  204  U.  S.  8;  Chicago,  Bur- 
lington &  Quincy  Railway  Co.  v.  Babcock,  204  U.  S.  585;  Walker  v. 
McLoud,  204  U.  S.  302;  Coffey  ».  Harlan  County,  204  U.  S.  659; 
Bacon  v.  Walker,  204   U.  S.  311;    Bachtel  v.  Wilson,  204   U.  S.  36; 
Barrington  v.  Missouri,  205  U.  S.  483;  Halter  v.  Nebraska,  205  U.  S. 
34;  Wilmington  Mining  Co.  v.  Fulton,  205  U.  S.  60;  Tracy  v.  Ginz- 
berg,  205  U.  S.  170;  Patterson  v.  Colorado,  205  U.  S.  454;  Chanler  v. 
Kelsey,  205  U.  S.  466;  Sauer  v.  City  of  New  York,  206  U.  S.  536; 
Atlantic  Coast  Line  v.  North  Carolina  Corporation  Commission,  206 
U.  S.  i ;  Buck  v.  Beach,  206  U.  S.  392 ;  Bernheimer  v.  Converse,  206 
U.  S.  516;  Hunter  v.  Pittsburgh,  207  U.  S.  161;  Polk  v.  Mutual  Re- 
serve Fund  Association,  207  U.  S.  310;  Consolidated  Rendering  Co. 


648  APPENDIX 

APPENDIX  »•  Vermont,  207  U.  S.  541;  Raymond  v.  Chicago  Traction  Co.,  207 

XX  U.  S.  20;  Central  of  Georgia  Railway  t;.  Wright,  207  U.  S.  127;  Bit- 

terman  v.  Louisville  &  Nashville  Railroad,  207  U.  S.  205;  Lee  ».  New 
Jersey,  207  U.  S.  67;  Ozan  Lumber  Co.  v.  Union  County  Bank,  207 
U.  S.  251;  Seaboard  Air  Line  v.  Seegers,  207  U.  S.  73;  Heath  &  Mil- 
ligan  Co.  v.  Worst,  207  U.  S.  338;  Interstate  Railway  Co.  v.  Massa- 
chusetts, 207  U.  S.  79;  Cosmopolitan  Club  v.  Virginia,  208  U.  S.  378; 
Hairston  ».  Danville  and  Western  Railway,  208  U.  S.  598 ;  Northern 
Pacific  Railway  v.  Duluth,  208  U.  S.  583;  Disconto  Gesellschaft  t;. 
Umbreit,  208  U.  S.  570;  Ughbanks  v.  Armstrong,  208  U.  S.  481;  Mul- 
ler  v.  Oregon,  208  U.  S.  412;  Darnell  &  Son  v.  Memphis,  208  U.  S.  113; 
Central  Railroad  Co.  v .  Jersey  City,  209  U.  S.  473 ;  Longyear  v.  Toolan, 
209  U.  S.  414;  Hudson  Water  Co.  v.  McCarter,  209  U.  S.  349;  Ex  parte 
Young,  209  U.  S.  123;  Thompson  v.  Kentucky,  209  U.  S.  340;  Lang  v. 
New  Jersey,  209  U.  S.  467;  Londoner  v.  Denver,  210  U.  S.  373;  Delmar 
Jockey  Club  v.  Missouri,  210  U.  S.  324;  Cleveland,  Cincinnati,  etc., 
Railway  Co.  v.  Porter,  210  U.  S.  177;  Berea  College  v.  Kentucky,  211 
U.  S.  45 ;  Twining  v.  New  Jersey,  2 1 1  U.  S.  78 ;  Home  Teleph.  and  Teleg. 
Co.  v.  Los  Angeles,  211  U.  S.  265;  Lemieux  v.  Young,  211  U.  S.  489; 
Beers  v.  Glynn,  211  U.  S.  477;  McClean  v.  Arkansas,  211  U.  S.  539; 
Paddell  v.  New  York,  211  U.  S.  446;  Rusch  v.  John  Duncan  Land  & 
Min.  Co.  2ii  U.  S.  526;  North  American  Cold  Storage  Co.  v,  Chicago, 

211  U.  S.  306;  New  York  ex  rel.  Sibz  v.  Hesterberg,  211  U.  S.  310; 
Thomas  v.  Texas,  212  U.  S.  278;  Hammond  Packing  Co.  v.  Arkansas, 

212  U.  S.  322;  Waters-Pierce  Co.  v.  Texas.  212  U.  S.  86;  Knoxville  v. 
Knoxville  Water  Co.  212  U.  S.  i,  New  York  C.  &  H.  R.  R.  Co.  v.  United 
States,  212  U.'S.  481 ;  Louisville  &  N.  R.  Co.  v.  Central  Stock- Yards  Co., 
212  U.  S.  132;  Ontario  Land  Co.  v.  York,  212  U.  S.  152;  Mozer  v.  Pea- 
body,  212  U.  S.  78;  Waters-Pierce  Oil  Co.  ».  Deselms,  212  U.  S.  159; 
Keerl  v.  Montana,  213  U.  8.135;  Bonner  v.  Gonnan,  2 1 3  U.  S.  86 ;  Welch 
v.  Swasey,  214  U.  S.  91;  District  of  Columbia  v.  Brooke,  214  U.  S.  138; 
Interstate  Com.  Commission  v.  Illinois  C.  R.  Co.,  215  U.  S.  452;  South- 
ern R.  Co.  v.  Greene,  216  U.  S.  400;  Louisville  &  N.  R.  Co.  v.  Gaston, 

216  U.  S.  418;  Alvarez  y  Sanchez  v.  United  States,  216  U.  S.  167;  Mis- 
souri P.  R.  Co.  v.  Kansas  ex  rel.  Taylor,  216  U.  S.  262;  Laurel  Hill  Cem- 
etery ».  San  Francisco,  216  U.  S.  358;  Southwestern  Oil  Co.  v.  Texas, 

217  U.  S.  114;  Brown-Fomian  Co.  v.  Kentucky,  217  U.  S.  563;  Williams 
v.  Arkansas,  217  U.  S.  79;  Standard  Oil  Co.  v.  Tennessee  ex  rel.  Cales, 
217  U.  S.  413;  Missouri  P.  R.  Co.  v.  Nebraska,  217  U.  S.  196;  Kidd, 
D.  &  R.  Co.  v.  Musselman  Grocer  Co.,  217  U.  S.  461 ;  Grenada  Lumber 
Co.  v.  Mississippi,  217  U.  S.  433;  Louisville  &  N.  R.  Co.  v.  Milton,  218 
U.  S.  36;  Watson  v.  Maryland,  218  U.  S.  173;  Western  U.  Teleg.  Co. 
v.  Commercial  Milling  Co.,  218  U.  S.  406;  Griffith  v.  Connecticut,  218 
U.  S.  563;  United  States  v.  Heinze,  218  U.  S.  532;  Ling  Su  Fass  v. 
United  States,  218  U.  S.  302;   Illinois  C.  R.  Co.  v.  Kentucky,  218 
U.  S.  551;  Cincinnati,  I.  &  W.  R.  Co.  v.  Connersville,  218  U.  S.  336; 
Shevlin-Carpenter  Co.  v.  Minnesota,  218  U.  S.  57;  Franklin  v.  South 
Carolina,  218  U.  S.  161;   Ong  Chang   Wing  v.  United    States,    218 
U.  S.  272. 

SECTION  2.  Representatives  shall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers,  counting  the  whole  num- 
ber of  persons  in  each  State,  excluding  Indians  not  taxed.  But  when 


APPENDIX  649 

the  right  to  vote  at  any  election  for  the  choice  of  electors  for  President     APPENDIX 
and  Vice-President  of  the  United  States,  Representatives  in  Congress,          XX 
the  Executive  and  Judicial  officers  of  a  State,  or  the  members  of  the 
Legislature  thereof,  is  denied  to  any  of  the  male  inhabitants  of  such 
State,  being  twenty-one  years  of  age,  and  citizens  of  the  United  States, 
or  in  any  way  abridged,  except  for  participation  in  rebellion,  or  other 
crime,  the  basis  of  representation  therein  shall  be  reduced  in  the  pro- 
portion which  the  number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such  State. 

McPherson  v.  Blacker,  146  U.  S.  I. 

SECTION  3.  No  person  shall  be  a  Senator  or  Representative  in  Con- 
gress, or  elector  of  President  and  Vice-President,  or  hold  any  office, 
civil  or  military,  under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath,  as  a  member  of  Congress,  or  as  an 
officer  of  the  United  States,  or  as  a  member  of  any  State  legislature,  or 
as  an  executive  or  judicial  officer  of  any  State,  to  support  the  Constitu- 
tion of  the  United  States,  shall  have  engaged  in  insurrection  or  rebel- 
lion against  the  same,  or  given  aid  or  comfort  to  the  enemies  thereof. 
But  Congress  may  by  a  vote  of  two  thirds  of  each  House,  remove  such 
disability. 

SECTION  4.  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of  pensions 
and  bounties  for  services  in  suppressing  insurrection  or  rebellion,  shall 
not  be  questioned.  But  neither  the  United  States  nor  any  State  shall 
assume  or  pay  any  debt  or  obligation  incurred  in  aid  of  insurrection 
or  rebellion  against  the  United  States,  or  any  claim  for  the  loss  or  eman- 
cipation of  any  slave;  but  all  such  debts,  obligations  and  claims  shall 
be  held  illegal  and  void. 

SECTION  5.  The  Congress  shall  have  power  to  enforce,  by  appropri- 
ate legislation,  the  provisions  of  this  article. 

Crandall  v.  The  State  of  Nevada,  6  Wall.  35;  Paul  v.  Virginia,  8 
Wall.  1 68;  Ward  v.  Maryland,  12  Wall.  418;  Slaughter-House  Cases, 
1 6  Wall.  36;  Brad  well  v.  The  State,  1 6  Wall.  130;  Bartemeyer  v. 
Iowa,  18  Wall.  129;  Minor  p.  Happersett,  21  Wall.  162;  Walker  v.  Sau- 
vinet,  92  U.  S.  90;  Kennard  r.  Louisiana  ex  rel.  Morgan,  92  U.  S. 
480;  United  States  v.  Cruikshank,  92  U.  S.  542;  Munn  v.  Illinois,  94 
U.S.  113. 

ARTICLE  XV  l 

SECTION  I.  The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States  or  by  any  State  on  ac- 
count of  race,  color,  or  previous  condition  of  servitude. 

1  The  Fifteenth  Amendment  to  Congress  on  the  27th  of  February, 

the  Constitution  of  the  United  States  1869,  and  was  declared,  in  a  procla- 

was  proposed  to  the  legislatures  of  mation  of  the  Secretary  of  State, 

the  several  states   by  the  Fortieth  dated  March  30,  1870,  to  have  been 


650  APPENDIX 

APPENDIX         SECTION  2.  The  Congress  shall  have  power  to  enforce  this  article 
XX  by  appropriate  legislation. 

United  States  v.  Reese  et  al.,  92  U.  S.  214;  United  States  v.  Cruik- 
shank  et  al.,  92  U.  S.  542;  Neal  v.  Delaware,  103  U.  S.  370;  United 
States  v.  Waddell  et  al.,  112  U.  S.  76;  Ex  parte  Yarbrough,  no  U.  S. 
651;  McPherson  v.  Blacker,  146  U.  S.  i;  James  v.  Bowman,  190  U.  S. 
127;  Hodges  v.  United  States,  203  U.  S.  I. 

RATIFICATIONS    OF  THE   CONSTITUTION 

The  Constitution  was  adopted  by  a  convention  of  the  States  Sep- 
tember 17,  1787,  and  was  subsequently  ratified  by  the  several  States, 
in  the  following  order,  viz.: — 

Delaware,  December  7,  1787. 
Pennsylvania,  December  12,  1787. 
New  Jersey,  December  18,  1787. 
Georgia,  January  2,  1788. 
Connecticut,  January  9,  1788. 
Massachusetts,  February  6,  1788. 
Maryland,  April  28,  1788. 
South  Carolina,  May  23,  1788. 
New  Hampshire,  June  21,  1788. 
Virginia,  June  26,  1788. 
New  York,  July  26,  1788. 
North  Carolina,  November  21,  1789. 
Rhode  Island,  May  29,  1790. 

The  State  of  Vermont,  by  convention,  ratified  the  Constitution  on 
the  loth  of  January,  1791,  and  was,  by  an  Act  of  Congress  of  the  i8th 
of  February,  1791,  "received  and  admitted  into  this  Union  as  a  new 
and  entire  member  of  the  United  States  of  America." 

ratified  by  the  legislatures  of  twenty-  March  i7~April  14,  1869  (and  the 

nine  of  the  thirty-seven  States.  The  legislature  of  the  same  State  passed 

dates  of  these  ratifications  (arranged  a  resolution  January  5,    1870,   to 

in  the  order  of  their  reception  at  the  withdraw  its  consent  to  it) ;  New 

Department  of  State)  were:  From  Hampshire,  July  7,  1869;  Nevada, 

North   Carolina,    March   5,    1869;  March  I,  1869;  Vermont,  October 

West  Virginia,  March  3,  1869;  Mas-  21,  1869;  Virginia,  October  8,  1869; 

sachusetts,  March  9-12,  1869;  Wis-  Missouri,  January  10,   1870;  Mis- 

consin,     March    9,    1869;    Maine,  sissippi,  January  15-17,  1870;  Ohio, 

March  12,  1869;  Louisiana,  March  January  27,  1870;  Iowa,  February 

5,  1869;  Michigan,  March  8,  1869;  3,    1870;   Kansas.   January   18-19, 

South  Carolina,   March   16,    1869;  1870;  Minnesota, February  19, 1870; 

Pennsylvania,  March  26,  1869;  Ar-  Rhode  Island,  January   18,   1870; 

kansas,  March  30,  1869;  Connecti-  Nebraska,  February  17, 1870; Texas, 

cut,  May  19,  1869;  Florida,  June  15,  February  18,  1870.     The  State  of 

1869;  Illinois,  March  5,  1869;  In-  Georgia  also  ratified  the  amendment 

diana,  May  13-14, 1869;  New  York,  February  2,  1870. 


APPENDIX  651 

APPENDIX 
RATIFICATIONS   OF  THE  AMENDMENTS  TO  THE  CONSTITUTION  XX 

The  first  ten  of  the  preceding  articles  of  amendment  (with  two  others 
which  were  not  ratified  by  the  requisite  number  of  States)  were  sub- 
mitted to  the  several  State  legislatures  by  a  resolution  of  Congress 
which  passed  on  the  25th  of  September,  1789,  at  the  first  session  of  the 
First  Congress,  and  were  ratified  by  the  legislatures  of  the  following 
States:  — 

New  Jersey,  November  20,  1789. 
Maryland,  December  19,  1789. 
North  Carolina,  December  22,  1789. 
South  Carolina,  January  19,  1790. 
New  Hampshire,  January  25,  1790. 
Delaware,  January  28,  1790. 
Pennsylvania,  March  10,  1790. 
New  York,  March  27,  1790. 
Rhode  Island,  June  15,  1790. 
Vermont,  November  3,  1791. 
Virginia,  December  15,  1791. 

The  acts  of  the  legislatures  of  the  States  ratifying  these  amendments 
were  transmitted  by  the  governors  to  the  President,  and  by  him  com- 
municated to  Congress.  The  legislatures  of  Massachusetts,  Connecti- 
cut, and  Georgia  do  not  appear  by  the  record  to  have  ratified  them. 

The  Eleventh  Article  was  submitted  to  the  legislatures  of  the  several 
States  by  a  resolution  of  Congress  passed  on  the  5th  of  March,  1794, 
at  the  first  session  of  the  Third  Congress;  and  on  the  8th  of  January, 
1798,  at  the  second  session  of  the  Fifth  Congress,  it  was  declared  by  the 
President,  in  a  message  to  the  two  Houses  of  Congress,  to  have  been 
adopted  by  the  legislatures  of  three  fourths  of  the  States,  there  being 
at  that  time  sixteen  States  in  the  Union. 

The  Twelfth  Article  was  submitted  to  the  legislatures  of  the  several 
States,  there  being  then  seventeen  States,  by  a  resolution  of  Congress 
passed  on  the  1 2th  of  December,  1803,  at  the  first  session  of  the  Eighth 
Congress,  and  was  ratified  by  the  legislatures  of  three  fourths  of  the 
States  in  1804,  according  to  a  proclamation  of  the  Secretary  of  State 
dated  the  25th  of  September,  1804. 

The  Thirteenth  Article  was  submitted  to  the  legislatures  of  the  several 
States,  there  being  then  thirty-six  States,  by  a  resolution  of  Congress 
passed  on  the  1st  of  February,  1865,  at  the  second  session  of  the  Thirty- 
eighth  Congress,  and  was  ratified,  according  to  a  proclamation  of  the 
Secretary  of  State  dated  December  18,  1865,  by  the  legislatures  of  the 
following  States:  — 

Illinois,  February  i,  1865. 
Rhode  Island,  February  2,  1865. 
Michigan,  February  2,  1865. 
Maryland,  February  3,  1865. 


652  APPENDIX 

APPENDIX  New  York,  February  3,  1865. 

XX  West  Virginia,  February  3,  1865. 

Maine,  February  7,  1865. 
Kansas,  February  7,  1865. 
Massachusetts,  February  8,  1865. 
Pennsylvania,  February  8,  1865. 
Virginia,  February  9,  1865. 
Ohio,  February  10,  1865. 
Missouri,  February  10,  1865. 
Indiana,  February  16,  1865. 
Nevada,  February  16,  1865. 
Louisiana,  February  17,  1865. 
Minnesota,  February  23,  1865. 
Wisconsin,  March  I,  1865. 
Vermont,  March  9,  1865. 
Tennessee,  April  7,  1865. 
Arkansas,  April  20,  1865. 
Connecticut,  May  5,  1865. 
New  Hampshire,  July  I,  1865. 
South  Carolina,  November  13,  1865. 
Alabama,  December  2,  1865. 
North  Carolina,  December  4,  1865. 
Georgia,  December  9,  1865. 

The  following  States  not  enumerated  in  the  proclamation  of  the  Sec- 
retary of  State  also  ratified  this  amendment:  — 

Oregon,  December  n,  1865. 
California,  December  20,  1865. 
Florida,  December  28,  1865. 
New  Jersey,  January  23,  1866. 
Iowa,  January  24,  1866. 
Texas,  February  18,  1870. 

The  Fourteenth  Article  was  submitted  to  the  legislatures  of  the 
several  States,  there  being  then  thirty-seven  States,  by  a  resolution  of 
Congress  passed  on  the  i6th  of  June,  1866,  at  the  first  session  of  the 
Thirty-Ninth  Congress,  and  was  ratified,  according  to  a  proclamation 
of  the  Secretary  of  State  dated  July  28,  1868,  by  the  legislatures  of  the 
following  States:  — 

Connecticut,  June  30,  1866. 
New  Hampshire,  July  7,  1866. 
Tennessee,  July  19,  1866. 
New  Jersey,  September  n,  I866.1 
Oregon,  September  19,  1866.* 
Vermont,  November  9,  1866. 

1  New  Jersey  withdrew  her  con-  2  Oregon  withdrew  her  consent 
sent  to  the  ratification  in  April,  to  the  ratification,  1 5th  of  October, 
1868.  1868. 


APPENDIX  653 

New  York,  January  10,  1867.  APPENDIX 

Ohio,  January  n,  I867.1  XX 

Illinois,  January  15,  1867. 

West  Virginia,  January  16,  1867. 

Kansas,  January  18,  1867. 

Maine,  January  19,  1867. 

Nevada,  January  22,  1867. 

Missouri,  January  26,  1867. 

Indiana,  January  29,  1867. 

Minnesota,  February  I,  1867. 

Rhode  Island,  February  7,  1867. 

Wisconsin,  February  13,  1867. 

Pennsylvania,  February  13,  1867. 

Michigan,  February  15,  1867. 

Massachusetts,  March  20,  1867. 

Nebraska,  June  15,  1867. 

Iowa,  April  3,  1868. 

Arkansas,  April  6,  1868. 

Florida,  June  9,  1868. 

North  Carolina,  July  4,  i868.2 

Louisiana,  July  9,  1868. 

South  Carolina,  July  9,  1 868.* 

Alabama,  July  13,  1868. 

Georgia,  July  21,  i868.2 

The  State  of  Virginia  ratified  this  amendment  on  the  8th  of  October, 
1869,  subsequent  to  the  date  of  the  proclamation  of  the  Secretary  of 
State.2 

The  States  of  Delaware,  Maryland,  Kentucky,  and  Texas  rejected 
the  amendment. 

The  Fifteenth  Article  was  submitted  to  the  legislatures  of  the  several 
States,  there  being  then  thirty-seven  States,  by  a  resolution  of  Congress 
passed  on  the  27th  of  February,  1869,  at  the  first  session  of  the  Forty- 
first  Congress;  and  was  ratified,  according  to  a  proclamation  of  the 
Secretary  of  State  dated  March  30,  1870,  by  the  legislatures  of  the  fol- 
lowing States:  — 

Nevada,  March  I,  1869. 
West  Virginia,  March  3,  1869. 
North  Carolina,  March  5,  1869. 
Louisiana,  March  5,  1869. 
Illinois,  March  5,  1869. 
Michigan,  March  8,  1869. 
Wisconsin,  March  9,  1869. 
Massachusetts,  March  12,  1869. 
Maine,  March  12,  1869. 

1  Ohio  withdrew  her  consent  to          *  North   Carolina,   South   Caro- 
the  ratification  in  January,  1868.          lina,  Georgia,  and  Virginia  had  pre- 
viously rejected  the  amendment. 


654  APPENDIX 

APPENDIX  South  Carolina,  March  16,  1869. 

XX  Pennsylvania,  March  26,  1869. 

Arkansas,  March  30,  1869. 
New  York,  April  14,  I869.1 
Indiana,  May  14,  1869. 
Connecticut,  May  19,  1869. 
Florida,  June  15,  1869. 
New  Hampshire,  July  7,  1869. 
Virginia,  October  8,  1869. 
Vermont,  October  21,  1869. 
Alabama,  November  24,  1869. 
Missouri,  January  10,  1870. 
Mississippi,  January  17,  1870. 
Rhode  Island,  January  18,  1870. 
Kansas,  January  19,  1870. 
Ohio,  January  27,  i87O.2 
Georgia,  February  2,  1870. 
Iowa,  February  3,  1870. 
Nebraska,  February  17,  1870. 
Texas,  February  18,  1870. 
Minnesota,  February  19,  1870. 

The  State  of  New  Jersey  ratified  this  amendment  on  the  2 1st  of 
February,  1871,  subsequent  to  the  date  of  the  proclamation  of  the  Sec- 
retary of  State.3 

The  States  of  California,  Delaware,  Kentucky,  Maryland,  Oregon, 
and  Tennessee  rejected  this  amendment. 

1  New  York  withdrew  her  consent      the  amendment  May  4,  1869. 
to  the  ratification,  January  5,  1870.  8  New  Jersey  had  previously  re- 

*  Ohio   had   previously   rejected      jected  the  amendment. 


INDEX 


INDEX 


Abolitionists,  in  Free  Soil  party,  287. 

Absolutism,  under  York  and  Tudor  kings,  88,  89; 
under  the  first  Stuarts,  90. 

Accused  persons,  rights  of,  secured  by  6th  Amend- 
ment, 238-240. 

Achaian  League,  the,  20,  109,  no,  in,  348. 

Act  of  Settlement,  the  (1700),  223,  297. 

Active  (sloop),  333. 

Adams,  President  John,  inaugural  address,  quoted, 
117,  n8;  first  Vice- Pres.,  220;  and  the  election  of 
1800,  248;  and  the  French  Directory,  304  seqq.;  and 
the  Essex  Junto,  312;  126,  127,  128,  131,  132,  165, 
168,  i69n.,  250,  323. 

Adams,  President  John  Quincy,  his  Memoirs  quoted, 
Sn.,  6,  36;  orders  Journal  of  Federal  Convention 
printed,  33;  "  era  of  good  feeling  "  came  to  an  end 
with  his  election,  282;  and  the  admission  of  Ar- 
kansas, 283;  9,  393  and  n. 

Adams,  Samuel,  and  the  ratification  of  the  Constitu- 
tion, 209;  126,  127,  283. 

Admiralty  jurisdiction,  defined  by  Chief  Justice  Taney, 
337- 

/Ethelbehrt,  laws  of,  S?n. 

Aggregation,  bases  of  England's  strength  as  a  colo- 
nizing power,  100. 

Alabama,  admission  of,  278;  ordinance  of  secession, 
338;  her  remodeled  constitution  construed  by  Su- 
preme Court,  375,  376;  and  the  negro,  376. 

Alabama  (cruiser),  not  a  privateer,  338. 

Alaska,  in  1852,  398,  399- 

Albany,  meeting  at  (1694),  120;  meeting  at  (1754)  in 
anticipation  of  French  and  Indian  War,  121 ;  Frank- 
lin's plan  for  system  of  colonial  defense  submitted 
thereat,  121;  Madison's  statement  of  its  purpose, 
121. 

Albany  Convention  (1684),  120. 

Alchred,  of  Northumbria,  62. 

Alexander,  John  McK.,  508. 

Alexander,  Sir  William,  278. 

Alien  Laws  (1798),  304,  305;  few  prosecutions  under, 
305;  attacked  by  Kentucky  and  Virginia  Resolu- 
tions, 306,  307. 

Aliens,  status  of  children  of,  born  in  U.  S.,  357,  358. 

Alison,  Sir  A.,  History  of  Europe,  quoted,  389n. 

Alleghany  Mountains,  123. 

Amendments.  See  under  Constitution  of  U.  S. 

America,  English  colonies  in.  See  English  colonies. 

American  and  English  constitutional  law,  oneness  of, 
252. 

American  Bar  Association,  470. 

American  Constitution.  See  Constitution  of  U.  S. 

American  constitutional  history,  starting-point  of,  53. 

American  historical  scholarship  and  foreign  expound- 
ers of  the  Constitution,  5. 

American  law,  unification  of,  466. 

American  Museum,  quoted,  494. 

American  statesmen,  sterility  of,  down  to  1781,  135- 

Ames,  Fisher,  209,  210. 

Angeln,  53  and  n. 

Anglo-Saxon  kingdoms  in  the  kingdom  of  England, 
57,  58. 

Anglo-Saxon  migrations  in  5th  and  I7th  centuries,  51, 
52  seqq. 

Annapolis,  Congress  at,  159  and  n. 

Annapolis  Convention  (1786),  address  of,  drafted  by 
Hamilton,  26;  its  outcome,  26;  and  the  call  for  a 
Federal  Convention,  167;  31,  415,  468. 

Anti-Federalist  party,  opposed  to  ratification  of 
Constitution,  281  and  n.,  282;  succeeded  by  first 
Republican  party,  282. 


Anti-monopoly  statute  of  21  James  I,  accepted  as  basic 
in  U.  S.  jurisprudence,  434;  later  modified  in  Eng- 
land, 435. 

Anti-Nebraska  men,  first  name  of  new  Republican 
party,  294. 

Anti-slavery  clause  in  Jefferson's  ordinance  for  gov- 
ernment of  N.  W.  Territory,  257. 

Anti-trust  Act  (1890).  See  Sherman  Anti-Trust  Act. 

Anti-trust  statutes  prior  to  Sherman  Act,  432,  433. 

Appropriations,  sole  power  to  appropriate  given  to 
House  of  Representatives,  i98n. 

Aragon,  88. 

Argentine  Republic,  U.  S.  type  of  federal  union  repro- 
duced in,  459. 

Aristotle,  Constitutions,  no  and  n.;  Politics,  377n. 

Arkansas,  admission  of,  283;  ordinance  of  secession, 
338;  constitution  of  1868  construed  by  Supreme 
Court,  346;  289. 

Arms,  right  to  keep  and  bear,  232,  233. 

Articles  of  Confederation  of  the  United  Colonies  of 
New  England  (1643),  full  text  of,  477-482. 

Articles  of  Confederation  (1777),  a  servile  copy  of  an 
ancient  type  of  federal  league,  10,  20,  21,  117,  135; 
no  fertility  of  resource  shown  in,  21;  original  draft 
of,  by  Franklin,  21;  P.  Webster  on  the  defects  of, 
38,  39,  141-143,  152,  153;  history  of,  130  seqq.; 
Franklin's  draft  the  basis  of  plan  reported  by  Com- 
mittee, and  accepted  by  Congress,  130;  ratified  by 
all  states,  130;  debate  on  quota  clause,  131,  132; 
and  on  method  of  voting,  132  seqq.;  inherent  weak- 
ness of,  135,  136;  their  only  novelty,  135,  136;  con- 
tained no  grant  of  taxing  power,  136,  137;  lack  of 
taxing  power  cause  of  failure  of,  139;  no  provision 
for  federal  judiciary,  152;  Congress  seeks  amend- 
ment of,  by  states,  156;  and  the  N.  W.  Territory, 
255,  382;  provincial  spirit  embodied  in,  299;  status 
of  citizens  under,  348,  349;  ineffectiveness  of,  458; 
full  text  of,  517-524;  signers  of,  524,  525;  122,  151. 

Assize  of  Clarendon.  See  Clarendon,  Assize  of. 

Assize  courts,  61,  86. 

Assize  of  arms,  71,  232. 

Assizes,  introduced  by  Henry  II,  71. 

"  Association,  The,"  advises  non-importation  leagues, 
128. 

Augustine,  St.,  57  and  n. 

Australia,  459. 

Australian  colonies  in  1852,  398. 

Avalon,  Hugh  of,  73. 

Baeda  (Bede),  Ecclesiastical  History,  57  and  n.,  58. 
Bagehot,  Walter,  The  English  Constitution,  quoted. 

Bail,  excessive,  prohibited  by  8th  Amendment,  242. 

Baldwin,  Abraham,  198,  226. 

Baldwin,  Simeon  E.,  The  Narrowing  Circle  of  Indi- 
vidual Rights,  quoted,  301,  405,  407,  408, 409,  41  in., 
448;  his  views  criticized,  409. 

Baltimore,  Cecilius  C.,  Lord,  98  and  n. 

Baltimore,  George  C.,  Lord,  98  and  n. 

Baltimore,  Congress  at,  159  n. 

Bancroft,  George,  History  of  the  Constitution,  quoted, 
8,  n,  37,  135,  i6in.,  175;  History  of  the  U.  S.,  258, 
27on.;  his  confusion  as  to  plans  submitted  to  the 
Convention,  9,  37,  38;  a  rhapsodist,  n;  and  P.  Web- 
ster's pamphlet,  27n.;  and  the  Pinckney  plan,  35; 
his  "  Connecticut  plan  "  an  invention,  38. 

Baron  court,  in  Maryland,  102. 

Baronage,  the,  73t  74,  75- 

Barons,  appear  in  person  in  Parliament  of  1295,  83. 

Bassett,  Richard,  174,  226. 


658 


INDEX 


Batavian  Republic,  117. 

Beach,  Monopolies  and  Industrtal  Trusts,  quoted,  435. 

Beatty,  John,  208. 

Becket,  Thomas  a,  70. 

Bedford,  Gunning,  198. 

Benjamin,  Judah  P.,  295. 

Benson,  Egbert,  217. 

Benton,  Thomas  H.,  Thirty  Years  Vtew,  257  and  n., 
315,  318  and  n.,  319.  386. 

Berkshire  (England),  58. 

Bicameral  Congress,  first  proposed  by  P.  Webster, 
150,  151. 

Biddle,  Edward,  127. 

Bigelow,  Melville  M.,  History  of  Procedure,  7Sn. 

Bigod,  Roger,  Earl  of  Norfolk,  83. 

Bill  of  Rights  (1689),  223,  243,  297. 

Bill  of  rights,  absence  of,  in  Constitution,  222;  pro- 
posed by  R.  H.  Lee,  224. 

Billeting  of  troops,  233. 

Bills  of  rights  of  American  state  constitutions,  the 
best  epitomes  of  the  English  constitutional  system 
as  modified  by  revolutions  of  1640  and  1688,  79; 
frequency  of,  222. 

Blackstone,  Sir  W.,  his  Commentaries,  the  guide  of 
American  statesmen  in  drafting  state  constitutions, 
79,  80;  76,  237,  36i,  365. 

Blair,  John,  174,  250. 

Bland,  Richard,  126,  140,  145. 

Blatchford,  Justice  Samuel,  opinion  In  Chicago  R.  R.  v. 
Minn.,  quoted,  425. 

Blount,  William,  226. 

Board  of  trade,  the,  120. 

Bohun,  Humphrey  de,  Earl  of  Hereford  and  Essex, 

Boroughs,  representatives  of,  In  Parliament,  83,  87. 

Boston,  port  of,  closed,  125,  126;  and  the  Boston  Port 
Bill,  127;  55. 

Boston  Port  Bill,  125-127. 

Boudinot,  Elias,  President  of  Congress,  159. 

Boundaries,  northwest,  dispute  with  Russia  concern- 
ing, 393. 

Boutmy,  M.,  Etude  de  Droit  constitutionnel,  75n. 

Bozeman,  John  L.,  History  of  Maryland,  102  and  n. 

Bradley,  Justice  Joseph  P.,  opinion  in  Civil  Rights 
cases,  quoted,  357;  and  in  Leloup  v.  Mobile,  419; 

Brannon,  The  Fourteenth  Amendment,  quoted,  370. 

Brazil,  U.  S.  type  of  federal  union  reproduced  in,  459. 

Brearley,  David,  174,  185,  208. 

Brewer,  Justice  David  J.,  quoted,  417;  opinion  in 
Northern  Securities  case,  439. 

Bridges,  interstate,  and  interstate  commerce,  424. 

Britain.  See  England  and  Old-English  Common- 
wealth. 

Britain,  Central,  58. 

Britain,  North,  58. 

Britain,  South,  58. 

British  Columbia  in  1852,  398. 

British  Empire,  extent  of,  397,  398;  proposed  federa- 
tion of  (1911),  459. 

Broom,  Constitutional  Law,  quoted,  291. 

Broom,  Jacob,  174. 

Brown,  Justice  Henry  B.,  opinion  in  Mattox  v.  U.  S., 
240;  in  Plessy  v.  Ferguson,  356,  357;  in  Bidwell  v. 
Downes,  388,  389;  in  Holden  v.  Hardy,  413. 

"  Brutus."  See  Yates,  Robert. 

Bryce,  James,  fails  to  recognize  originality  of  new  fed- 
eral system,  4  and  n.,  5;  American  Commonwealth, 
3,  310,  380,  381,  409-411,  453- 

Burgesses,  house  of,  in  Virginia,  96. 

Burke,  Edmund,  quoted,  79,  80,  106,  370. 

Burr,  Aaron,  and  the  election  of  1800,  248,  249;  and 
Hamilton,  251;  his  trial  for  treason,  251,  252. 

Butler,  Pierce,  44,  45,  174,  179,  i8sn.,  I98n.,  226. 

Cabinet,  members  of,  should  sit  in  Congress,  to  initiate 

legislation,  149. 

Cabinet  council.  See  Ministers  of  State. 
Cable  companies,  and  the  Act  of  1910,  429. 
Cabots,  John  and  Sebastian,  claim  of  English  Crown 


to  English  settlements  In  America  based  on  their 
voyages,  89,  90;  patents  issued  to,  90  and  n.,  91. 

Caesar,  C.  Julius,  53  seqq. 

Calhoun,  John  C.,  first  applied  doctrine  of  nullifica- 
tion to  practical  politics,  316;  birth  and  character, 
316;  dissertation  of  July,  1831,  319;  and  the  doc- 
trine of  secession,  325,  326;  nullification  resolutions, 
327,  328;  speech  of  Feb.  15,  1833,  and  Webster's 
reply,  328;  last  speech  in  the  Senate  (1850),  328; 
281,  318,  336,  338,  39i. 

California,  and  the  Compromise  of  1850,  287;  admis- 
sion of,  287;  in  1852,  398. 

Calvin's  case,  rule  in,  358. 

Campbell,  John  A.,  as  counsel  in  Slaughter-House 
cases,  350,  403n.;  on  the  Supreme  Court,  259. 

Canada,  123,  459. 

Canning,  George,  Sec.  for  Foreign  Affairs,  389n.;  and 
the  Holy  Alliance,  390;  negotiations  with  U.  S.,  390. 

Capet,  Hugh,  his  title,  114  and  n. 

Capetian  dynasty,  accession  of,  114. 

Captain-general  for  the  colonies,  120. 

Caribbean  Sea,  396. 

Carolina,  a  proprietary  government,  99, 

Carpenters'  Hall,  Phila.,  127. 

Carrington,  Edward,  257. 

Carroll,  Daniel,  226. 

Castile,  88. 

Castlereagh,  Robert  Stewart,  Viscount,  390. 

Caswell,  Richard,  127. 

Catron,  Justice  John,  259. 

Census,  provided  for  by  Federal  Convention,  198; 
first,  272. 

Central  America,  and  U.  S.,  396;  in  1852,  398. 

Central  government,  system  of,  69  seqq. 

Cerdic,  King  of  West  Saxons,  founder  of  first  royal 
line  of  England,  58;  house  of  the  sole  survivor  of  all 
royal  lines,  63. 

Chancellor,  presiding  officer  of  House  of  Lords,  84; 
development  of  judicial  power  of,  86. 

Charlemagne,  empire  of,  113. 

Charles  II  of  England,  98. 

Charles  V,  Emperor,  88;  380. 

Charles  III  (the  Simple)  of  France,  65. 

Charter  of  April,  1606,  based  on  English  law,  91,  92. 

Charter  of  1609,  92. 

Charter  of  1629,  93,  97,  98. 

Charter  of  1662,  98. 

Charter  of  1663,  98. 

Charter  of  1691,  98. 

Charter  colonies,  Massachusetts  a  type  of,  97,  98. 

Charters  under  which  colonial  governments  were  or- 
ganized, 94;  irrevocable  by  the  Crown,  94;  but 
revocable  by  Parliament,  95. 

Chase,  Chief  Justice  Salmon  P.,  and  the  "compact" 
theory,  311;  opinion  in  Texas  ».  White,  quoted, 
311.  340;  339-341,  354- 

Chase,  Samuel,  opposes  ratification  of  Constitution, 
211;  130,  131,  132,  i65n.,  256. 

Chatham,  William  Pitt,  Lord,  129. 

Chesapeake  Bay,  166,  167. 

China  in  1852,  398. 

Chippewas  and  the  N.  W.  Territory,  255. 

Christianity,  in  Britain,  57. 

Church,  the,  and  Cromwell,  88. 

Circuit  courts.  See  Courts,  circuit. 

Cities,  representatives  of,  in  Parliament,  83. 

Citizenship,  terms  of  charter  of  James  I  concerning, 
380. 

Citizenship  of  U.  S.,  non-existent  until  I4th  Amend- 
ment, 298,  461 ;  under  Articles  of  Confed.  and  Con- 
stitution, 348, 349;  inquest  concerning  in  Dred  Scott 
case,  349;  Justice  Curtis  on,  349,  350 ;  Justice  Miller 
on,  350  seqq.;  status  of  children  of  aliens,  born  in 
U.  S.,  357,  358;  status  of  corporations,  358,  359- 

City-Commonwealth,  Greek,  109,  no. 

City  Tavern,  Phila.,  127. 

Civil  cases,  jury  trials  in,  guaranteed  by  ?th  Amend- 
ment, 240  seqq. 

Civil  War,  the,  precipitated  by  slavery  question,  33 1, 
342;  not  a  rebellion,  338;  lessons  of,  409. 


INDEX 


659 


Cititas,  the  Teutonic  state,  54;  formation  and  elements 
of,  55,  56;  "a  marching  military  state,"  56;  repro- 
duced in  Britain,  57  and  n.;  60,  112. 
Claiborne,  William  C.  C.,  Gov.  of  Orleans  Territory, 

284. 

Clarendon,  Edward  Hyde,  Earl  of,  and  the  Sheldonian 
compact,  84. 

Clarendon,  Assize  of,  grand-jury  system  remodeled 

by,  71. 
Clarendon,  Constitutions  of,  70. 

Clark,  George  Rogers,  256. 

Clay,  Henry,  and  the  Missouri  Compromise,  281;  and 
the  Compromise  of  1850,  287;  his  tariff  bills  of  1832 
and  1833,  319,  320;  opposes  extension  of  Constitu- 
tion to  territories,  386. 

Clayton-Bulwer  Treaty,  and  the  Monroe  Doctrine, 
394- 

Clements,  Judson  C.,  on  railway  capitalization  in 
U.  S.,  430,  431. 

Clergy,  represented  in  Parliament  of  1295,  83,  84; 
and  the  Sheldonian  compact,  84  and  n. 

Cleveland,  Grover,  and  the  Monroe  Doctrine,  394; 
his  Venezuela  message,  394,  395;  and  the  Sherman 
Act,  436,  437. 

Clinton,  George,  his  plan  for  a  union,  120,  121;  his 
factious  selfishness,  200;  in  N.  Y.  struggle,  216,  217; 
and  the  Federal  Convention,  302  and  n. 

Code  Napoleon,  466,  467  and  n. 

Coffee  House,  the,  Phila.,  i58n. 

Coke,  Sir  Edward,  his  Institutes,  77,  78,  81,  360,  365, 
366,  367,  381;  his  interpretation  of  ch.  39  of  the 
Great  Charter  inapplicable  after  the  revolutions  of 
1640  and  1688,  78  seqq.;  his  merit  as  an  expounder 
of  the  Charter,  360,  361;  and  Blackstone,  361;  on 
monopolies,  434. 

Collectivism,  the  present  an  age  of,  301,  405,  407; 
transition  from  individualism  to,  402,  408-411,  448, 
462,  463. 

Collier,  Price,  quoted,  397. 

Colonial  assemblies,  limited  powers  of,  457. 

Colonial  rights,  American  and  English  theories  of, 
105-107. 

Colonial  systems:  — 
Of  Spain,  379,  380. 
Of  England,  380  seqq. 

Of  U.  S.,  foundation  of,  laid  by  Ordinance  of 
1787,  265;  that  system  the  model  on  which  all  ter- 
ritories were  afterward  organized,  277;  382  seqq., 
384,  385. 

Colonies,  English,  in  America.  See  English  colonies. 

Colonies,  relation  of,  to  parent  state  according  to  an- 
cient and  modern  conceptions,  377,  378. 

Colonists  in  U.  S.,  excluded  from  participation  in  Con- 
stitution, 265;  restricted  suffrage  of,  267. 

Colonization,  modern,  history  of,  379  seqq. 

Color,  distinctions  based  on,  356,  357. 

Comitatus,  the,  56. 

Commerce,  influence  of,  in  compelling  unity  of  law, 
25  seqq.,  467;  regulation  of,  under  Art.  of  Confed., 
137;  confusion  caused  by  state  regulation  of,  166; 
Annapolis  Convention,  167;  and  finance,  necessi- 
ties of,  largely  responsible  for  Federal  Convention, 
168  seqq.;  revolution  in,  caused  by  use  of  steam, 
300,  337;  and  the  War  of  1812,  312,  313;  wide  con- 
tent of  term,  416. 

Commerce,  an  act  to  regulate.  See  Interstate  Com- 
merce Act. 

Commerce,  chamber  of,  proposed  by  P.  Webster,  but 
not  adopted,  31;  later  appeared  as  Dep't  of  Com- 
merce and  Labor,  31. 

Commerce,  foreign,  regulation  of,  417;  power  of  states 
to  interfere  with,  by  taxation,  417;  controlled  by 
Congress  exclusively,  418;  subject  to  state  inspec- 
tion laws,  426. 

Commerce,  interstate,  line  between  and  intrastate, 
424;  national  gov't  has  exclusive  power  to  regulate, 
423,  424- 

Commerce  clause  of  Constitution,  vigorously  op- 
posed by  N.  Y.  and  Va.,  207,  208;  an  overworked 
part  of  the  Constitution,  414;  evolution  of,  in  Fed 


eral  Convention,  415  seqq.;  construed  in  Gibbons  r. 
Ogden,  416;  does  not  prohibit  states  from  making 
proper  regulations,  417;  Supreme  Court  divided  on 
construction  of,  418;  and  "pure-food"  acts,  427. 

Commerce  Court,  created  by  Act  of  1910,  430;  its 
jurisdiction  exclusive,  430. 

Commerce  and  Labor,  Department  of,  31. 

Commercial  system,  uniform,  and  the  Annapolis  Con- 
vention, 468. 

Committee  of  Detail,  members  of,  34,  200;  plans  and 
resolutions  submitted  to,  34,  199,  200,  583-585;  and 
the  Pinckney  plan,  36,  178,  201  seqq.;  its  report  sub- 
mitted by  Rutledge,  203,  586-596,  and  discussed, 
203  seqq.;  commerce  clause  in,  415. 

Committee  of  Style,  members  of,  205;  its  report,  206, 
594-602. 

Committee  on  Unfinished  Portions,  204  and  n.,  205 
and  n. 

Committee  of  the  Whole,  Va.  and  Pinckney  plans 
referred  to,  176;  discussion  in,  179;  reports  19  reso- 
lutions, 179  seqq.,  187-189;  New  Jersey  plan  re- 
ferred to,  191;  its  report  thereon,  194. 

Committees,  special,  of  the  Federal  Conv.,  204. 

Common  carriers,  who  are  held  to  be,  under  Act  of 
1910,  429. 

Common-law  courts,  source  of,  85. 

Common  Pleas,  Court  of,  85. 

Commons,  the,  represented  in  Parl.  of  1295,  83. 

Commons,  House  of,  at  first  allowed  to  share  only  in 
taxation,  85;  its  increased  importance  under  reor- 
ganized Parl.,  87;  125. 

Compact,  Rousseau's  theory  of,  embodied  in  Ky.  and 
Va.  Resloutions,  306,  308,  309;  Jefferson's  theory  of 
the  Constitution  as  a,  destroyed  by  Marshall  and 
Chase,  310,  311. 

"  Compact  theory,"  in  work  of  Hartford  Convention, 
314;  if  well-founded,  justified  doctrine  of  secession, 
321 ;  persistence  of,  325;  kept  alive  only  as  a  weapon 
to  defend  slavery;  how  extinguished,  325. 

"  Competition,"  not  mentioned  in  Anti-Trust  Act,  450. 

Composite  states,  distinction  between,  and  confeder- 
ated states,  109. 

Compromise  of  1850,  287. 

"  Compromises  of  the  Constitution,"  found  in  Art.  i, 
sect. 9, cl.  i;  Art.  i,  sect.  2,  cl.  3;  Art.  iv, sect.  2,  cl. 
3,  253,  255;  not  to  be  overturned  by  President  of 
Congress,  345. 

Conciliar  system,  conflict  between,  and  parliamentary 
system,  90. 

Confederate  States  of  America,  a  perfect  de  facto  gov- 
ernment, 338. 

Confederated  states,  distinction  between,  and  com- 
posite states,  109;  based  on  requisition  system,  114, 
115. 

Confederation,  the,  doomed  by  refusal  of  R.  I.  to  give 
Congress  power  to  levy  duties,  157;  and  the  public 
domain,  256;  a  failure,  458. 

Confederations  in  America,  various  plans  of,  119  seqq., 
128;  Franklin  and  Coxe's  plan  of  1754,  121,  122; 
effect  of  increased  population  on  idea  of,  123. 

Confirmatio  cartarum,  provisions  of,  83,  84,  360. 

Conflict  of  laws,  469  seqq. 

Congress,  in  P.  Webster's  plan,  and  the  "  Ministers  of 
State,"  148;  bicameral  form  of,  urged  by  Webster, 
150,  151,  and  adopted,  174.  i94;  method  of  election 
of,  151  and  n.,  184-186;  Webster's  views  as,,to  its 
powers,  151,  152,  155;  debate  on  organization  and 
powers  of,  179,  180;  its  control  over  people  of  terri- 
tories, how  limited,  266,  267;  laws  of,  subject  to 
review  by  Supreme  Court,  298,  299;  powerless  to 
abolish  slavery,  345;  debates  in,  not  admissible  to 
control  meaning  of  words  in  a  statute,  3545  may 
govern  dependencies  as  it  chooses,  383;  has  exclu- 
sive control  of  foreign  commerce,  418;  its  powers 
keep  pace  with  the  progress  of  the  country,  419;  can 
it  grant  charters  to  railroads?  420;  growth  of  legis- 
lative business  in,  149,  411. 

Congress  of  the  U.  S.,  various  meeting-places  of,  i59n. 

First:  assembles  at  New  York,  counts  electoral 

votes,  and  removes  to  Phila.,  220;  committees  of. 


66o 


INDEX 


how  chosen,  225;  composition  of,  226;  Madison, 
leader  of  House  in,  227;  proposes  12  amendments  to 
Constitution,  228;  ratifies  Ordinance  of  1787,  and 
divides  N.  W.  Territory,  277. 

Second:  committees  of,  how  chosen,  225. 

Third:  proposes  nth  Amendment  for  ratifica- 
tion, 246. 

Fourth:  committees  of,  appointed  by  Speaker, 

Fifth:  passes  Alien  and  Sedition  Laws,  304,  305. 

Sixth:  passes  act  fixing  seat  of  government  at 
Washington,  220  and  n.,  221. 

Eighth:  proposes  I2th  Amendment  for  ratifica- 
tion, 248;  provides  form  of  gov't  for  Louisiana  Terr., 
275,  384;  tacitly  recognizes  existence  of  slavery 
there,  276. 

Fifteenth:  directs  publication  of  Journal  of  Fed- 
eral Convention,  5,  6,  32  and  n.;  discusses  admission 
of  Missouri,  *8o. 

Seventeenth:  and  the  gov't  of  Florida  Terr.,  385. 

Twenty-second:  and  the  ordinance  of  nullification, 

Twenty-eighth:  assents  to  admission  of  Texas  on 
conditions,  285. 

Thirty-seventh:  abolishes  slavery  in  territories, 
343;  legislation  of,  concerning  slaves,  343. 

Thirty-eighth:  repeals  fugitive-slave  laws,  343. 
Forty-fourth:  and  the  election  of  1876,  249,  250. 
Forty-ninth:  creates  Interstate  Commerce  Com- 
mission, 419. 

Conkling,  Roscoe,  quoted,  355. 

Connecticut,  a  charter  colony,  97,  119,  120;  her  char- 
ter never  altered  before  the  Revolution,  98;  sends 
delegates  to  Stamp  Act  Congress,  125;  state  con- 
stitution of  1776,  and  ch.  39  of  the  Great  Charter, 
76;  delegates  to  ist  Continental  Congress,  127;  her 
claim  to  western  lands,  134;  ratifies  Constitution, 
209;  opposes  Ky.  and  Va.  Resolutions,  311;  and  the 
War  of  1812,  313;  and  the  Hartford  Convention, 
313,  314;  137,  157,  185,  190,  194.  I99n.,  255,  362. 

Connecticut  compromise,  45. 

Connecticut  Courant,  secession  first  defined  in  print  in 
(i795),  323. 

"Connecticut  plan"  (Bancroft's)  never  existed,  9, 
37,  38. 

Connecticut  Reserve,  134,  135,  256,  382. 

Conquest,  territory  acquired  by,  387. 

Conquest  and  discovery,  era  of,  89. 

Conseil  Federal  (Swiss),  148,  149. 

Constitution  of  the  U.  S.,  leading  foreign  expounders 
of,  deal  only  with  aftergrowth,  2-5 ;  five  features  of, 
absolutely  novel  as  attributes  of  a  federal  gov't, 

4,  458,  459;  no  federal  principles  of,  derived  from 
England,  5;  Story  fails  to  reveal  its  origin,  7;  sum- 
mary of  accounts  of  its  origin  given  by  previous 
writers,  10,  n;  the  "great  discovery"  made  in  1783, 
and  carried  to  the  Convention  in  the  shape  of  three 
"  plans,"  n,  12;  to  trace  its  origin  is  to  fill  a  vacu- 
um, 15;  Gladstone  on,  18;  students  of ,  must  begin 
with  study  of  English  Constitution,  19;  makers  of, 
had  to  study  federal  unions  of  Greece,  Netherlands, 
Switzerland,  and  Germany,  20;  "  passed  through  a 
process  of  canonization,"  22,  49;  little  curiosity  as 
to  author  of,  22;  inspiration  theory  of  its  origin,  22; 
the  various  "plans"  presented  to  the  Convention, 
22  seqq.;  all  based  on  P.  Webster's  Dissertation,  24; 
influence  of  commerce  in,  25;  P.  Webster  the  first  to 
defend,  47-49,  603-609;  four  basic  principles  of, 
172;  as  embodied  in  23  resolutions  referred  to  Com. 
of  Detail,  199;  draft  of,  in  report  of  that  commit- 
tee, 203,  586-593;  work  of  Committees  of  Style  and 
on  Unfinished  Portions,  204-206,  594-602;  finally 
adopted,  206,  207;  submitted  to  Continental  Con- 
gress and  referred  to  state  legislatures,  207 ;  opposi- 
tion to  commerce  clause  of,  in  N.  Y.  and  Va.,  207, 
208;  ratified  by  Del.,  208,  Penn.,  208,  N.  J.,  208, 
Ga.,  208,  Conn.,  209,  Mass.,  209,  210,  Md.,  211, 

5.  C.,  212,  and  N.  H.,  212;  ratification  by  N.  H. 
assures  adoption  of,  212;  ratified  by  Va.,  216,  N.  Y., 
218,  N.  C.,  219,  R.  I.,  219;  opposition  to,  because 


not  prefaced  by  bill  of  rights,  222,  and  because  of 
lack  of  guaranty  of  jury  trial  in  civil  cases,  240,  241; 
provision  of,  concerning  treason,  251,  252;  is  the 
exclusive  possession  of  the  organized  states,  265, 
266;  question  of  ratification  of,  divided  men  into 
Federalists  and  Anti-Federalists,  281;  responsible 
for  judgment  in  Dred  Scott  case,  292,  293;  wide 
expansion  of,  297  seqq.;  real  difference  between, 
and  English  Constitution,  298;  national  spirit  em- 
bodied in,  299,  300;  "compact  theory"  of,  in  Ky. 
and  Va.  Resolutions,  306,  307;  Jefferson's  funda- 
mental heresy  touching  that  theory,  309;  not  a  com- 
pact, but  an  instrument  of  perpetual  efficacy,  310, 
321,  322;  changes  in,  recommended  by  Hartford 
Convention,  314,  315;  direct  action  of,  on  the  citi- 
zen, 325;  itself  the  real  source  of  difficulty  in  slav- 
ery question,  330;  Marshall's  share  in  interpreting, 
332;  his  definition  of,  in  McCulloch  v.  Md.,  336; 
defined  by  Supreme  Court  after  the  Civil  War,  in 
Texas  v.  White,  339, 340 ;  logically  completed  by  I4th 
Amendment,  348;  proposed  extension  of,  to  terri- 
tories, opposed  by  Webster  and  Clay,  386;  does 
not,  proprio  vigore,  extend  to  all  possessions  of  U.  S., 
388;  Lecky  on,  408;  elasticity  and  growing-power 
of,  408;  contract  clause  of,  and  corporations,  412, 
413;  and  the  police  power,  413;  overworked  parts 
of,  412;  413;  glaring  solecism  in,  removed  by  I4th 
Amendment,  460-462;  full  text  of,  with  Amend- 
ments, 610-650;  signers  of,  636-637. 
Amendments:  — 

Subject  of,  discussed  in  state  conventions, 
225 ;  difficulty  of  securing,  299. 

I— XII,  proposed  by  Madison,  and  recom- 
mended for  ratification  by  Congress,  228 ;  preamble 
to,  229;  limitations  on  the  federal  gov't,  not  on  the 
states,  229;  their  adoption,  dictated  by  the  jealousy 
of  the  states,  222. 

I-X,  ratified  by  the  states,  228,  637. 

I-VIII,  derived  from  the  body  of  new  consti- 
tutional law  evolved  in  England  between  1640  and 
1776,  243;  effect  of  i4th  Amendment  on,  369. 

I»  230-232;  one  clause  of,  nullified  by  Supreme 
Court  in  1892,  230  and  n.,  231. 

II,  construed  by  Supreme  Court,  232. 

III,  233. 

IV,  233,  234;  construed  by  Supreme  Court,  234. 

V,  235;  construed  by  Supreme  Court,  77,  235- 
237. 

VI,  238;  construed  by  Supreme  Court,  238-240. 

VII,  240;  purpose  of,  241;  construed  by  Su- 
preme Court,  241,  242. 

VIII,  242;    copy  of  art.  x  of  English    Bill  of 
Rights,  243;  not  a  limitation  on  power  of  states, 
243- 

IX,  Story  on  purpose  of,  244,  245;  an  instance 
of  over-caution,  244. 

X,  245;  construed  by  Supreme  Court,  245,  246; 
compared  with  P.  Webster's  views  on  same  subject, 
155- 

XI,  proposed  by  3d  Congress,  and  ratified  by 
states,  246,  642n.,  651;  necessity  of,  disclosed  by 
Chisholm  v.  Georgia,  246,  247;  construed  by  Su- 
preme Court,  247. 

XII,  247;  necessity  of,  disclosed  by  election  of 
1800,  248;  proposed  by  8th  Congress  and  ratified 
by  states,  248,  643n.,  651. 

XIII,  and  the  Dred  Scott  case,  293;  history  of, 
343  seqq.;  proposed  by  38th  Congress,  and  ratified 
by  states,  644n.,  651;  slavery  not  abolished  until 
ratification  of,  345,   346;  construed  by   Supreme 
Court,  346;  its  effect,  346;  certain  state  laws  not  in 
conflict  with,  426. 

XIV,  proposed  by  39th  Congress,  and  ratified 
by  states,  644n.;  construed  by  Supreme  Court,  77, 
78,  235,  236,  350  seqq.,  354  seqq.,  369,  37O,  461,  462; 
a  limitation  on  powers  of  the  states,  236,  370;  cre- 
ates a  national  citizenship,  298,  461,  462;  logically 
completes   the   Constitution,    348;   section    i,   in- 
tended to  remedy  defect  disclosed  by  Dred  Scott 
case,  350;  rule  of  that  case  overturned   by,  351 J 


INDEX 


661 


that  section  a  new  Great  Charter,  353,  354;'  other 
motives  of,  351,  353;  broad  view  of  last  section  has 
prevailed,  354;  abolishes  three-fifths  rule  as  to 
representation  and  taxes,  371;  overworked,  368 
414,  645-649;  and  certain  recent  state  laws,  426, 
and  state  regulation  of  liquor  traffic,  427.  And  see 
"  Due  process  of  law,"  and  Self-incrimination. 

XV,  proposed  by  40th  Congress  and  ratified  by 
states,  649:  sole  limitation  on  exclusive  control  of 
suffrage  by  states,  373 ;  construed  by  Supreme  Court, 
373  seqq. 

XIII-XV,  to  be  regarded  as  a  single  amend- 
ment, 343. 

See  Committee  of  Detail,  Committee  of  Style, 
Committee  on  Unfinished  Portions,  Committee  of 
the  Whole,  Federal  Convention,  and  The  Great 
Discovery. 

Constitution,  compromises  of  the.  See  Compromises. 

Constitution,  English.   See  English  Constitution. 

Constitution,  First  Federal.  See  Articles  of  Confed- 
eration. 

Constitution  a  compact.  See  Compact  theory. 

"  Constitution,  the,  follows  the  flag,"  characterized, 
265,  384. 

Constitutional  growth  of  U.  S.,  297  seqq.;  little  aided 
by  amendments  of  the  Constitution,  302. 

Constitutional  guarantees,  apply  to  states  alone,  387. 

Constitutional  law,  new  principles  of,  103,  104;  Mar- 
shall's share  in  creating,  332. 

Constitutional  limitations  of  legislative  powers  of 
states,  an  American  invention,  105,  457. 

Constitutions,  recent  Southern,  374. 

Constitutions,  state,  influence  of  reformed  English 
Constitution  on,  361,  369,  370 ;  restatements  of  ch. 
39  of  the  Great  Charter  in,  362-364. 

Constitutions  of  Clarendon.  See  Clarendon,  Consti- 
tutions of. 

Continental  Congress,  Federal  Convention  of  1787 
called  by,  6,  162,  165,  167,  168;  and  the  Articles  of 
Confederation,  10,  136, 137,  5i?n.;  and  P.  Webster's 
Dissertation,  40,  41;  consisted  of  but  one  house,  141, 
147;  its  powers  indefinite,  141;  absurdity  of  three 
years'  limitation  of  service  in,  142,  151;  recommends 
establishment  of  independent  gov'ts  (1776),  104; 
first  meeting  at  Phila.,  125  seqq.;  leading  members 
of,  126;  no  talk  of  revolution  at  opening  of,  127; 
Galloway's  plan  of  confederation  defeated,  127,  128; 
Declaration  of  Rights  and  Liberties,  128,  498-501; 
"The  Association,"  128;  petition  to  the  King,  129; 
first,  dissolved,  129;  address  to  people  of  Gt.  Brit- 
ain, etc.,  129;  all  colonies  represented  in  Second, 
129;  until  March,  1781,  was  the  de  jure  and  de  facto 
gov't,  129,  130;  Articles  of  Confederation  reported, 
debated,  and  adopted,  130  seqq.;  jurisdiction  of,  in 
disputes  between  states,  152;  and  the  Revolution- 
ary debt,  156;  appeals  to  states  for  power  to  impose 
duties,  156,  157;  membership  and  character  of,  in 
February,  1783,  158;  marked  decadence  of,  158,  159; 
presidents  of,  159;  peregrinations  of,  159  and  n.; 
proceedings  of  Federal  Convention  submitted  to, 
by  Washington,  207;  proposed  constitution  trans- 
mitted to  state  legislatures,  207;  action  of  states 
reported  to,  220;  appoints  first  election  day,  220; 
and  the  Ordinance  of  1787,  255  seqq.;  last  days  of, 
267,  268;  its  last  act  passed  Oct.,  1788,  268;  formal 
dissolution  of,  268. 

Conventicle  Act,  230. 

Convention  of  1787.  See  Federal  Convention. 

Corbin,  Mr.,  of  Va.,  216. 

Corporate  power,  subjected  to  state  control,  411,  412; 
and  the  Dartmouth  College  case,  412;  and  Charles 
River  Br.  v.  Warren  Br.,  412,  413. 

Corporation  Tax  Law  (1909),  provision  of,  432;  sus- 
tained by  Supreme  Court,  432n. 

Corporations,  nature  of,  93,  94;  how  dissolved,  94; 
status  of,  under  i4th  Amendment,  358;  persons,  but 
not  citizens,  359;  limitations  of  state  control  of,  359, 
407;  proposed  national  charters  of,  431,  432;  pur- 
pose to  make  federal  control  of,  universal,  432. 

Cotton,  production  of,  in  South,  since  the  War,  347. 


Cotton-gin,  effect  of  invention  of,  on  slavery,  254. 

Council,  the,  and  the  monarchy,  1485  to  1640,  87,  88; 
constitution  and|  power  of,  to  1640,  90.  And  set 
Conciliar  system. 

Council  of  the  Indies.  See  Indies. 

Counsel,  right  of  accused  to  appear  by,  239,  240. 

Counties,  in  colonies,  aggregations  of  townships,  100; 
comparative  prominence  and  functions  of,  in  the 
Southern,  New  England,  and  Middle  colonies,  101. 

Court  leet,  in  Md.,  102,  103. 

Courts,  powerlessness  of,  in  Tudor  times,  87. 

Courts  in  U.  S.,  origin  of  system  of  law  and  equity  in, 
70;  history  of,  86. 

Courts,  circuit,  of  U.  S.,  created  by  Judiciary  Act, 
227;  and  the  new  (1910)  Commerce  Court,  430. 

Courts,  district,  of  U.  S.,  226,  227. 

Courts,  inferior,  recommended  by  P.  Webster,  153. 

Courts,  state.  See  State  courts. 

Coxe,  Daniel,  real  author  of  plan  of  union  submitted 
by  Franklin  at  Albany  (1754),  122;  135,  139. 

Coxe's  and  Franklin's  plan,  text  of,  484-494. 

Creeks  (Indians),  284. 

Criminal  cases,  jury  trial  in,  guaranteed  by  6th 
Amendment,  238. 

Cromwell,  Oliver,  uses  Parl.  as  a  tool,  88;  and  the 
church,  88. 

Crown,  the,  struggle  between  ealdormen  and  (958- 
1066),  64;  ancient  criminal  jurisdiction  of,  revived 
under  Henry  VII,  87;  policy  of,  in  isth  and  i6th 
centuries,  88;  claim  of,  to  English  settlements  in 
America,  90;  its  title  thereto,  perfected  early  in  I7th 
century,  91;  and  the  right  to  grant  newly  discov- 
ered lands,  pi. 

Crusade,  Third,  and  the  first  tax  on  personal  pro- 
perty, 72. 

Cuba,  283,  288,  391,  396. 

Curia  Regis,  from  Henry  II's  time  the  supreme  court 
of  justice,  68,  70;  development  of,  as  a  judicial  tri- 
bunal, 70,  71;  represents  beginning  of  King's  Bench, 
71 ;  parent  of  common-law  courts,  85,  86;  its  judicial 
work  distributed  among  them  and  the  chancellor, 
86.  And  see  King  in  Council,  the. 

Curtis,  Justice  Benjamin  R.,  opinion  in  Murray  ».  Ho- 
boken  Land  Co.,  81,  236,  237,  364,  365;  historical 
error  apparent  therein,  237,  365;  his  reasoning  re- 
jected by  Justice  Mathews,  80,  81,  365;  dissenting 
opinion  in  Scott  ».  Sandford,  461;  247. 

Curtis,  George  T.,  History  of  the  Origin,  Formation, 
and  Adoption  of  the  Constitution,  quoted,  7,  8;  the 
first  American  to  attempt  such  a  history,  7;  its  de- 
fects, 8. 
ushing,  Thomas,  126. 

Customary  law,  60;  and  royal  law,  union  of,  69;  when 
first  committed  to  writing,  57  and  n. 

Customs,  have  the  force  of  law,  when,  276. 

Cutter,  Ephraim,  268. 

Dane,  Nathan,  and  the  Ordinance  of  1787,  258. 

Daniel,  Justice  Peter  V.,  259. 

Dartmouth  College  case.  See  Dartmouth  College  ». 
Woodward,  in  Table  of  Cases. 

Darwin,  Charles,  52. 

Davie,  William  R.,  45,  174,  197,  198,  199,  218. 

Dayton,  Elias,  226. 

Deane,  Silas,  127. 

Declaration  of  Independence,  and  Jefferson's  Rous- 
seauist  ideas,  322;  text  of,  513-515;  signers  of,  515, 
516;  130,  131,  382. 

Declaration  of  the  Rights  and  Grievances  of  the  Colo- 
nists in  America  (1765),  125,  495-496. 

Declaration  of  Rights  and  Liberties  (i774),  128,  498- 
501. 

Declaratory  Act  (1766),  497. 

Delaware,  set  off  from  Penn.,  93;  a  proprietary  gov't., 
down  to  Revolution,  99;  sends  delegates  to  Stamp 
Act  Congress,  125;  in  the  Federal  Convention,  173, 
174;  first  state  to  ratify  Constitution,  208;  and  the 
N.  W.  Territory,  255;  opposes  Ky.  and  Va.  Resolu- 
tions, 311;  134,  137,  167,  190,  i99n.,  229.  271. 

Delegated  powers,  P.  Webster  on,  30;  Calhoun  on,  318. 


662 


INDEX 


Democracy,  American,  becoming  conscious,  at  last,  of 
its  sovereign  power,  465;  reconstruction  of  political 
society  by,  466. 

Democracy,  English,  466. 

Democratic  Convention,  at  Baltimore  (1852),  287;  at 
Charleston  (1860),  295. 

Democratic  party,  name  assumed  by  Jackson  wing  of 
Republicans,  in  1828,  283;  its  policies  and  support- 
ers, 283;  the  only  great  party  from  1852  to  1854, 
294. 

Democrats,  Anti-Slavery,  an  element  of  Free-Soil 
party,  287. 

Departments,  division  into,  a  new  idea  in  a  federal 
state,  146,  147;  English  precedent  followed  in  first 
state  constitutions,  146;  P.  Webster's  proposal,  147; 
heads  of,  removable  by  President,  227. 

Detail,  Committee  of.  See  Committee  of  Detail. 

Devonshire,  58. 

Dick,  Samuel,  257. 

Dickinson,  John,  10,  125,  130,  182,  184,  190,  196,  226. 

Diet,  the,  of  Germanic  Confederation,  115. 

Dinwiddie,  Robert,  Governor  of  Virginia,  121. 

Direct  primary  system,  spread  of,  465. 

Direct  taxation,  how  apportioned,  198,  199. 

Discovery,  title  by,  91. 

Discovery  and  conquest,  era  of,  89,  90. 

District  courts.  See  Courts,  district. 

Documentary  History  of  the  Constitution,  quoted,  5. 

Dorsaetas  (Dorset),  58. 

Dorset,  J.  F.  Sackville,  Duke  of,  quoted,  168,  169. 

Douglas,  Stephen  A.,  and  squatter  sovereignty,  288; 
opposed  by  A.  Lincoln,  289;  the  Lincoln-Douglas 
debates  (1858),  289;  his  discomfiture,  294,  295;  344. 

Drake,  Sir  Francis,  89. 

Dred  Scott  case,  See  Scott,  Dred;  also  Scott  v.  Sand- 
ford,  below,  and  in  Table  of  Cases. 

Duane,  James,  127,  192,  217. 

"  Due  process  of  law,"  in  sth  and  I4th  Amendments, 
77,  78,  80,  81,  82,  222,  235,  236,  237, 359,  seqq.,  364, 
36s,  366,  367,  370. 

Dunmore,  John  Murray,  Earl  of,  Governor  of  Vir- 
ginia, dissolves  House  of  Burgesses,  126. 

Dutch,  the,  in  New  Netherland,  119. 

Dutch  West  India  Co.,  254. 

Eadgar  the  Peaceful,  first  King  of  all  the  English,  59, 
63  and  n.,  64. 

Eadward  the  Confessor,  64,  66,  67. 

Eadwine,  Earl  of  Mercia,  64. 

Eadwine,  King  of  Northumbria,  59n. 

Ealdormen,  struggle  of,  with  the  Crown,  64;  60,  62. 

East  Saxons  (Essex),  58. 

Ecgbehrt  of  Wessex,  first  called  himself  King  of  the 
English,  59. 

Economic  conditions  in  U.  S.  (1911),  298. 

Economic  problems,  transition  from  political  to,  463 
seqq. 

Edward  I,  and  Parliament  of  1295,  83;  his  attempt  to 
tax  the  people  without  its  authority,  leads  to  the 
Confirmatio  cartarum,  83 ;  Westminster  became  seat 
of  government  under,  84. 

Edward  II,  deposed  by  Parl.  of  1327,  85. 

Edward  III,  Parl.  divided  into  two  houses  under,  84. 

Edward  IV,  85,  87,  88,  89. 

Election,  theory  of,  in  kingship,  62. 

Electoral  colleges,  composition  of,  205. 

Electoral  Commission  Act  (1877),  249,  250. 

Electoral  Count  Act  (1887),  250. 

Electoral  system,  changed  by  i2th  Amendment,  247 
seqq. 

Electors,  choice  of  President  by,  182,  204,  205;  are 
state  officers,  372. 

Elliot,  Alex.,  Debates  of  the  Convention,  33n. 

Ellsworth,  Oliver,  on  Committee  of  Detail,  200; 
arbitrator  between  Northern  and  Southern  mem- 
bers, 201,  202;  author  of  Judiciary  Act  of  1789,  226; 
Chief  Justice  of  U.  S.,  226;  34,  38,  45,  186,  195,  196, 
198,  250. 

Emancipation,  and  W.  L.  Garrison,  281;  with  com- 
pensation, suggested  by  Lincoln,  343,  344. 


Emancipation  proclamation  without  legal  effect,  344; 
345;  could  not  abolish  slavery  in  a  constitutional 
sense,  345. 

Embargo,  the,  effects  of,  in  New  England,  313. 

Embargoes,  Hartford  Convention  on  limitation  of,  315. 

Emerson,  R.  W.,  The  Young  American,  quoted,  404, 
405. 

Emerson,  Dr.,  owner  of  Dred  Scott,  291. 

Emigration,  early,  to  colonies,  402. 

England,  reproduced  in  each  colonial  commonwealth, 
i8;.sourceof  ascendancy  ,ias  a  colonizing  power,  19, 
100";  resemblance  of  American  states  to,  19;  origin 
of,  51;  aggregation  of  shires  into,  58  seqq.;  union  of 
the  heptarchic  states,  58;  consolidation  of,  59-61; 
Norman  conquest,  how  facilitated,  64,  65;  real  na- 
tional unity  attained  under  William  I,  66  seqq.; 
laws  of,  brought  to  America  by  colonists,  92;  a 
single  state  divided  into  three  departments,  146; 
right  of  accused  to  call  witnesses  in,  239;  Florida 
ceded  to,  by  Spain,  283,  and  re-ceded,  284;  law  as 
to  status  of  slaves  in,  291,  292;  and  France,  304; 
treaty  with  U.  S.  (1796),  304;  and  the  War  of  1812, 
312;  colonial  system  of,  380,  381 ;  charter  of  James  I, 
380;  citizenship  thereunder,  381;  commercial  supre- 
macy of,  and  the  Holy  Alliance,  389;  Canning  and 
the  Monroe  Doctrine,  389,  390;  protests  against 
Russian  ukase  of  Sept.  1821,  393;  and  the  Venezue- 
lan boundary  dispute,  394,  395;  her  fleet  to-day 
practically  withdrawn  from  Caribbean  Sea,  396;  and 
U.  S.,  importance  of  firm  alliance  between,  401. 
And  see  British  Empire  and  Old-English  Common- 
wealth. 

Engleland.  See  Angeln. 

Engles,  their  habitat  in  Sleswick,  52,  53.  And  set 
Low-Dutch  tribes. 

English  and  American  constitutional  law,  oneness  of, 
252. 

English  Chronicle,  59n. 

English  colonies  in  America,  development  of,  18; 
resemblance  of,  to  Anglo-Saxon  settlements  in 
Britain  in  5th  century,  52,  61;  divers  charters 
granted  to,  92  seqq.;  were  mere  corporations  created 
by  the  Crown,  93,  94;  terra  regis,  94;  internal  organ- 
ization of,  99  seqq.;  new  principle  of  constitutional 
law  originated  by  creation  of,  103,  104;  majority  of, 
adopt  written  constitutions  (1776),  104;  American 
theory  of  rights  of,  105,  106;  the  Crown  their  only 
tie  with  England,  106;  conflict  of  American  and 
English  theories  of  rights  of,  caused  the  Revolution, 
1 06,  107;  early  plans  of  confederation  among,  119 
seqq.;  growth  of  population  and  its  effect  on  feder- 
ative idea,  123;  and  French  intrigues,  123,  124;  re- 
sults of  struggle  for  expansion,  124;  resist  Stamp 
Act,  124;  send  delegates  to  Stamp  Act  Congress, 
125;  Georgia  alone  unrepresented  in  ist  Continental 
Congress,  125;  380,  381. 

English  Constitution,  limitations  of  written  history 
of,  i;  sources  of,  only  recently  explored,  i;  the 
political  substructure  of  every  American  state,  18; 
why  not  "  British,"  18;  a  fusion  of  Teutonic  and 
Norman  systems,  52,  70;  reformed  and  invigorated 
by  revolutions  of  1640  and  1688,  78  seqq.,  361;  the- 
ory of,  regarding  newly  discovered  lands,  91;  as 
reformed,  the  source  of  state  bills  of  rights  and  of 
the  first  8  Amendments  to  Constitution  of  U.  S., 
243,  244,  361;  its  growth  directed,  how,  297;  real 
difference  between,  and  Constitution  of  U.  S.,  298; 
effect  of  conquest  under,  381 . 

English  Renaissance,  the,  89  seqq. 

English  settlements  in  America,  title  of  Crown  to,  90, 

"  Era  of  good  feeling  "  (1816-1824),  282. 

Erie  Canal,  419. 

Essex  County,  Mass.,  Federalist  opinion  In,  312. 

"  Essex  Junto,"  importance  of,  in  Federal  party, 
312. 

Estate  system,  establishment  of,  73;  collapse  of,  85. 

Estates,  Assembly  of.  See  Parliament. 

Europe,  nations  of,  and  title  by  discovery,  91;  emigra- 
tion from,  286. 


INDEX 


663 


European  aggression,  danger  of,  a  serious  factor  in 
American  politics  down  to  1825,  274.  . 

Evolution,  philosophy  of,  409. 

Exchequer,  court  of,  86. 

Excise  tax,  Hamilton's,  the  first  real  assertion  of  na- 
tional power,  303;  causes  the  whiskey  insurrection, 
303.  . 

Executive  Department,  P.  Webster's  proposed  organ- 
ization of,  148.  And  see  Departments. 

Executive  and  legislative  powers,  lack  of  closer  con- 
nection between,  the  root  of  all  evil,  149. 

Executive  power,  debate  on,  in  Federal  Convention, 
180-182. 

Fact,  opinion  of  court  on  questions  of,  242. 

Farrand,  Max,  Records  of  the  Federal  Convention,  5, 14, 
33n. 

Federal  Convention  of  1787,  nature  of  its  work,  4;  pro- 
ceedings of,  long  remained  a  mystery,  5,  6,  32;  its 
records  sealed  and  entrusted  to  Washington,  5,  32; 
its  Journal,  etc.,  published  by  order  of  Congress  in 
1818,  5,  6  and  n.,  33  and  n.;  Madison's  record  of 
proceedings  published  in  1841,  6;  Bancroft's  con- 
fused account  of,  9;  "an  assembly  of  demi-gods," 
li ;  three  "plans  "  for  work  of,  prepared  beforehand, 
II  seqq.,  170,  178;  the  sole  question  before  it,  how 
P.  Webster's  invention  should  be  adapted  to  exist- 
ing conditions,  12,  178;  each  "plan"  embodied 
every  element  of  "  the  great  discovery,"  13;  report- 
ers from  without  excluded,  14;  debates  partially 
and  inaccurately  reported,  14;  resolutions  reported 
to,  by  Com.  of  the  Whole,  34,  187-189,  and  dis- 
cussed, 189  seqq.;  eminence  of  members  of,  43-46; 
how  P.  Webster  forced  calling  of,  161,  162;  due  to 
urgent  necessities  of  finance  and  commerce,  168 
seqq.,  302;  working-time  of,  171;  opening  of  (May 
25,  1787),  173,  174;  delegates  present  at  opening, 
174;  debate  on  organization  of  Congress,  184-186; 
really  considered  only  Virginia  and  Pinckney  plans, 
194;  debate  on  basis  of  representation,  195  seqq.; 
"on  the  verge  of  dissolution,"  196;  committee  on 
compromise  appointed,  197;  its  report  debated,  198, 
199;  debate  on  report  of  Com.  of  Detail,  203  seqq.; 
work  of  Corns,  on  Unfinished  Portions  and  of  Style, 
204-206;  adopts  Constitution  and  reports  to  Con- 
gress, 206  seqq.;  and  the  "  Compromises,"  254;  pro- 
vision for  admission  of  new  states,  271,  272.  And 
see  Com.  of  Detail,  Com.  of  Style,  Com.  on  Un- 
finished Portions,  Pinckney  plan,  and  Virginia  plan. 

Federal  courts,  admiralty  jurisdiction  of,  337. 

Federal  Farmer,  the  (R.  H.  Lee),  216. 

Federal  government,  novel  attributes  of,  in  Constitu- 
tion of  U.  S.,  4,  13,  146;  temporary  seat  of,  220  and 
n.,  221;  state  jealousy  of,  and  the  first  12  Amend- 
ments, 222;  increasing  abnormal  demands  upon, 

Federal  judiciary.  See  Judiciary,  federal. 

Federal  laws,  and  state  laws,  154,  334,  335;  need  of 
scientific  codification  of,  472,  473. 

Federal  legislature,  bicameral,  first  suggested  by  P. 
Webster,  40. 

Federal  power,  supremacy  of,  over  states,  416. 

Federal  union,  an  artificial  and  entirely  novel  crea- 
tion, 18;  in  Greece,  Netherlands,  Switzerland,  and 
Germany,  20;  due  to  geographical  considerations, 
108;  defined,  108,  109;  the  ideal  type  of,  109;  how 
classified,  114.  And  see  Composite  states. 

Federalism,  history  of,  prior  to  1787,  108  seqq.; 
Achaian  and  ^Etolian  leagues,  no;  Greek,  history 
of,  a  sealed  book,  in  1787,  in;  then  little  esteemed 
by  mankind,  117. 

Federalist,  The,  origin  and  authors  of,  210  and  n.;  Mar- 
shall's opinion  of ,  21 1 ;  influence  of.  in  N.  Y.  struggle 
over  ratification,  216;  quoted  or  referred  to,  20  and 
n.,  in,  116,  n8n.,  233,  241,  244. 

Federalist  party,  and  the  election  of  1800,  248,  249; 
desired  ratification,  281,  282;  called  "  monarchical  " 
by  Jefferson,  282;  and  the  quarrel  with  France,  304, 
305;  as  strict  constructionists,  313;  successful  in 
New  England,  in  election  of  1812,  313;  opposed  to 


War  of  1812,  313;  in  New  England,  and  the  right  of 
secession,  323,  324;  final  disappearance  of,  between 
1815  and  1820,  282. 

Federation,  effect  of  French  and  Indian  War  on  cause 
of,  124. 

Ferdinand  V  (the  Catholic),  380. 

Feudal  army,  the,  71,  72. 

Feudal  councils,  gradually  transformed  into  Assembly 
of  Estates,  85. 

Feudalism,  in  German  cities,  crushed  by  mercantile 
spirit,  25 ;  under  William  1,6?;  under  William  II  and 
Flambard,  67;  fate  of  the  township  under,  101,  102. 

Feudalization,  process  of,  113  and  n.,  114. 

Few,  William,  174,  226. 

Field,  Justice  Stephen  J.,  opinion  in  Virginia  v.  Rives, 
226;  in  Santa  Clara  v.  So.  Pac.  R.  R.,  355,  356;  in 
Bowman  v.  C.  and  N.  W.  R.  R.,  427,  428;  354. 

Finances  of  U.  S.,  P.  Webster  on,  144;  and  the  calling 
of  the  Federal  Convention,  168  seqq. 

Fines,  excessive,  242,  243. 

Fiske,  John,  American  Political  Ideas,  quoted,  102, 
io8n.;  Critical  Period  of  American  History,  quoted, 
270,  271,  382. 

Fitz-Peter,  Geoffrey,  74. 

Fitzsimons,  Thomas,  157,  174,  226. 

Five  Nations,  and  the  Albany  Convention,  120;  treaty 
with,  120. 

Flambard,  Ranulf,  67. 

Fletcher  v.  Peck,  the  first  case  of  annulment  of  a  state 
law  by  U.  S.  Supreme  Court,  331. 

Florida,  province  of,  283,  284;  territory  of,  organized, 
284,  385;  admitted  to  Union,  284. 

Florida,  and  the  Louisiana  Purchase,  274;  ordinance  of 
secession,  338. 

Florida,  East,  ceded  by  Spain  to  U.  S.,  284. 

Florida,  West,  seized  by  U.  S.,  284. 

Folk-moot,  57,  60,  63. 

Foraker  Act  (1900),  388. 

Foreign  Affairs,  Department  of,  227;  changed  to  State 
Dept.,  227. 

Foreign  Affairs,  Minister  of.  See  Minister  of  Foreign 
Affairs. 

Founders  of  the  U.  S.     See  U.  S.,  founders  of  the. 

France,  monarchy  in,  114;  right  of  accused  to  call 
witnesses  in,  239;  and  Texas,  284;  and  the  neutral- 
ity proclamation  of  17  93,  304;  and  John  Adams, 
304;  in  Mexico,  and  the  Monroe  Doctrine,  394;  in- 
trusion of  state  power  in,  403. 

Franklin,  Benjamin,  and  the  Articles  of  Confedera- 
tion, 10,  21 ;  had  no  thought  of  gov't  with  power  to 
tax,  21,  135;  Coxe  and,  their  plan  of  union  for  de- 
fense, 121,  122,  484-494;  Articles  of  Confederation 
based  on  his  draft,  130;  the  peace-maker,  185,  196, 
197;  appeals  for  unanimity  in  Federal  Convention, 
206;  44,  45  and  n.,  132,  133.  139.  147,  165,  i69n., 
I79t  185,  198,  250. 

Free-Soil  party,  born  of  Wilmot  Proviso,  287;  respon- 
sible for  election  of  Taylor  (1848),  287. 

Free-Soil-Democratic  convention  at  Pittsburg  (1852), 
287. 

Free  states  admitted  to  Union  before  1860,  290. 

Freedom  of  speech,  230  and  n.;  and  the  Sedition  Law, 
305;  and  the  decision  in  In  re  Rapier,  230  and  n.,  231, 
232. 

Freeman,  Edward  A.,  letters  and  divers  works  of, 
quoted,  in.,  59,  62n.,  ioin.,  102,  non.,  in,  ii4n., 
146  n.,  148,  149;  15. 

Fr6mont,  John  C.,  his  emancipation  proclamation  dis- 
avowed by  Pres.  Lincoln,  343. 

French  and  Indian  War,  121,  123,  124. 

French  colonists,  found  New  Orleans,  123;  seek  to 
confine  English  to  coast,  123;  result  of  struggle  with 
English,  124. 

French  Constitution  of  1793,  403. 

French  Revolution,  influence  of,  on  Jefferson,  308, 
403,  404,  462;  the  orgy  of  individualism,  403;  effect 
of,  in  U.  S.,  462. 

Friesland.  51,  53. 

Fugitive  Slave  Law,  and  the  Compromise  of  1850,  287; 
abolished  in  1864,  343. 


664 


INDEX 


Fulk  of  Anjou,  68. 

Fuller,  Melville  W.,  23 in. 

Fuller,  The  Purchase  of  Florida,  quoted,  28411. 

Fulton,  Robert,  416. 

Gadsden,  Christopher,  126. 

Gage,  Thomas,  80. 

Galloway,  Joseph,  his  plan  of  confederation,  submit- 
ted to  Congress,  and  defeated,  127,  128  and  n. 

Galvez  y  Gallardo,  Bernardo,  283. 

Gardoqui,  Spanish  premier,  208. 

Garrison,  William  Lloyd,  demands  unconditional 
emancipation,  281;  and  the  Dred  Scott  case,  292, 
293  and  n.;  an  advocate  of  secession  in  1845,  326. 

Gau.  See  Hundred. 

Gemot,  57- 

General  warrants,  prohibited  by  4th  Amendment,  233, 
234. 

Genet,  Edmond  Charles  ("  Citizen  "),  and  the  neu- 
trality proclamation  of  1793,  304;  recalled,  304. 

Geography,  a  factor  in  determining  union  of  colonies, 
108. 

George  III,  129. 

George,  James  Z.,  and  the  new  constitution  of  Miss.,  374. 

Georgia,  the  only  colony  not  represented  in  ist  Con- 
tinental Congress,  125;  ratines  Constitution,  208; 
and  slavery,  254;  claim  of,  to  Mississippi  Terr.,  277, 
278;  state  convention  of  1850,  326;  ordinance  of 
secession,  338;  137,  199  and  n.,  273. 

German  Code  of  1900,  the,  467. 

Germanic  Confederation,  the,  20,  115. 

Germany,  397. 

Gerry,  Elbridge,  44,  181,  182.  i86n.,  198,  199.  206, 
223,  226,  250. 

Gilman,  John  T.,  226. 

Gladstone,  W.  E.,  18,  42. 

Godwine,  Earl,  64. 

Goebel,  Julius,  commentary  on  Faust,  quoted,  360. 

Gordy,  Political  Parties  in  the  U.  S.,  quoted,  28in. 

Gorges,  Sir  Ferdinando,  heirs  of,  sell  present  State  of 
Maine  to  Mass.,  278. 

Gorham,  Nathaniel,  Pres.  of  Congress,  159;  34,  187- 
189,  196,  199,  200,  201,  202,  206. 

Goschen,  George  J.,  Viscount,  quoted,  465. 

"  Governors,  House  of,"  471,  472. 

Graham,  Geo.  W.,  quoted,  509- 

Graham,  William  A.,  quoted,  508,  509. 

Grand  jury,  and  the  5th  Amendment,  235;  71. 

Gray,  Horace,  opinion  in  Lowe  v.  Kansas,  quoted,  81, 
366;  in  U.  S.  v.  Wong  Kim  Ark,  358. 

Grayson,  William,  213,  257,  258,  271. 

Great  Britain.  See  England. 

Great  Charter,  the,  forced  from  King  John  by  the 
barons,  74,  75;  confirmed  by  the  Confirmatio  car- 
tarunt,  83;  varying  interpretations  of,  222,  223;  the 
cornerstone  of  American  constitutional  law,  223; 
242,  243. 

Chap.  39,  the  immortal  part,  75;  construction  of, 
in  later  years,  76;  as  it  appears  in  various  state  con- 
stitutions, 76  seqq.,  362,  363;  and  the  5th  and  i4th 
Amendments,  77,  78,  81,  237,  297,  359  seqq.,  366; 
Blackstone's  commentary,  not  Coke's,  the  true  key 
to  meaning  of,  365. 

Great  Council.  See  Magnum  Concilium. 

"  Great  invention,  the."   See  Webster,  Pelatiah 

Greece,  ancient,  federalism  in,  20  and  n.,  no;  rela- 
tions of,  with  her  colonies,  377. 

Greek  city-commonwealth,  the,  109,  no. 

Green,  J.  R.,  History  of  the  English  People,  quoted, 
53n.,  s6n.,  63n.,  66n.,  73,  74,  io7n.,  soon.,  402. 

Grenville,  George,  107,  381,  382,  383. 

Grenville  Ministry,  the,  125. 

Grier,  Justice  Robert  C.,  opinion  in  Prize  Cases, 
quoted,  338,  339,  342;  259. 

Griffin,  Cyrus,  Pres.  of  Congress,  159;  presides  with 
Marshall  at  trial  of  Burr,  251. 

Grotius,  Hugo,  quoted,  116. 

Guadalupe-Hidalgo,  Treaty  of,  386. 

Guerrero,  Vicente,  286. 

Guthrie,  The  Fourteenth  Amendment,  353. 


Habeas  Corpus  Act  (1679),  223,  297. 

Hallam,  Henry,  Constitutional  History,  quoted,  I, 
223,  461. 

Hamilton,  Alexander,  history  and  character  of,  191; 
192;  his  special  aptitude  for  economics  and  finance, 
192;  among  the  first  to  conceive  the  idea  of  a  fed- 
eral convention,  162,  165,  192;  his  plan  elaborately 
worked  out  beforehand,  n  seqq.,  22,  23  and  n.,  24; 
his  plan  submitted  to  the  convention,  15,  193;  full 
text  of  his  plan,  570^-579;  which  was  more  volum- 
inous but  less  practical  than  Pinckney's,  193;  his 
great  speech  imperfectly  reported,  15,  193;  his  plan 
unsupported,  193,  and  not  referred  to  Com.  of  De- 
tail, 200;  his  plan  published  in  1801,  33;  author  of 
address  of  Annapolis  Convention,  26;  and  P.  Web- 
ster's Dissertation,  40,  41;  and  P.  Webster,  Prof. 
Sumner  on,  161;  his  motion  concerning  suffrage, 
179,  180;  takes  little  part  in  later  proceedings  of 
convention,  200;  his  triumph  in  N.  Y.  struggle  over 
ratification,  218;  and  the  election  of  1800,  251;  shot 
by  Burr,  251;  leader  of  Federalists,  282;  his  excise 
tax  on  spirits  the  first  real  assertion  of  national 
power,  303;  quoted  on  various  subjects,  in,  137, 
138,  157,  158,  194,  241,  244;  mentioned,  14,  20,  28, 
36,  42,  44,  ii6n.,  n8n.,  139,  169,  170,  171,  172,  174, 
175,  177,  205,  250,  302,  312. 

Hamilton,  Charles,  160. 

Hamilton,  John  C.,  Life  of  Alexander  Hamilton,  quoted, 
15,  23,  193- 

Hampshire,  58. 

Hancock,  John,  Pres.  of  Congress,  159;  favors  rati- 
fication, 210;  225,  283,  312. 

Hanover,  Lower,  53. 

Hanover,  Treaty  of,  117. 

Hanson,  John,  Pres.  of  Congress,  159. 

Harlan,  Justice  John  M.,  dissenting  opinion  in  Twining 
v.  New  Jersey,  quoted,  369;  in  U.  S.  ».  Knight,  448, 
449. 

Harmon,  Judson,  Attorney-General,  437. 

Harold,  chosen  king  to  succeed  Eadward,  64;  de- 
feated at  Hastings,  66. 

Harrison,  Benjamin,  opposes  ratification,  213;  126. 

Harrison,  President  Benjamin,  436. 

Harrison,  President  W.  H.,  277. 

Hartford  Convention  (1814),  and  the  War  of  1812, 
312;  originated  by  Mass.,  313;  membership  of,  313, 
314;  its  work  a  reflection  of  Va.  and  Ky.  Resolu- 
tions, 314,  315;  its  designs  defeated  by  Jackson's 
victory,  at  New  Orleans,  315;  and  the  right  of 
secession,  324. 

Hastings,  battle  of,  66. 

Hawaii  in  1852,  398. 

Hayes,  President  R.  B.,  and  the  election  of  1876,  249, 
250. 

Hayne,  Robert  Y.,  Calhoun's  spokesman,  315;  his 
debate  with  D.  Webster,  316-318;  his  defense  of 
nullification  based  on  Va.  Resolutions,  317;  319. 

Henderson,  Alexander,  16511. 

Henry  I,  his  election,  67;  his  coronation  oath  a  char- 
ter of  liberties,  67  and  n.;  his  administrative  reform, 
68;  laws  of,  the  basis  of  the  Great  Charter,  74. 

Henry  II,  heir  of  Stephen,  68;  fusion  between  Nor- 
man and  Teutonic  systems  began  in  his  reign,  70; 
levies  scutage,  72;  first  taxes  personal  property,  72; 
7i,  232. 

Henry  III,  83. 

Henry  IV,  85. 

Henry  VII,  the  true  successor  of  Edward  IV  in  a  con- 
stitutional sense,  87;  88,  89. 

Henry,  John,  324. 

Henry,  Patrick,  opposes  Federal  Convention,  178; 
on  Rutledge,  200;  tries  to  organize  Southern  con- 
federacy, 21 1 ;  opposes  ratification,  213,214,  215; 
126,  128,  302. 

Heptarchic  states,  division  of,  58,  59,  63. 

Herbert,  Hilary  A.,  Reconstruction  by  Eye-Witnesses , 
342n. 

Hereditary  principle  in  kingship,  how  modified,  6a. 

Heretoga  (war -leader),  62. 

Hewes,  Joseph,  127. 


INDEX 


665 


High  Commission,  the,  78,  237,  360,  361. 

Highways,  interstate,  control  of,  419,  420. 

Hobart,  Mr.,  217. 

Hobbes,  Thomas,  311,  321,  325. 

"  Holding  Companies,"  formation  of,  due  to  decision 
in  U.  S.  v.  Trans-Missouri  Freight  Assoc.,  438;  the 
U.  S.  Steel  Corp.,  438;  surrender  of  McKinley  ad- 
min, to,  438;  the  No.  Securities  Co.,  439  seqq. 

Holland,  304. 

Holland,  Sir  Henry,  Jurisprudence,  quoted,  309, 

Holmes,  Justice  Oliver  W.,  dissenting  opinion  in  No. 
Securities  Co.,  440,  441. 

Holy  Alliance,  the,  390,  391,  392. 

Hooper,  William,  127. 

Hopkins,  Stephen,  127,  133. 

House  of  Commons.  See  Commons,  House  of. 

House  of  Lords.  See  Lords,  House  of. 

House  of  Representatives.  See  Representatives, 
House  of. 

Houston,  William  C.,  174. 

Howe,  W.  W.,  Studies  in  the  Civil  Law,  469. 

Howell,  David,  256. 

Hoyt,  William  H.,  502,  509. 

Hudson  River,  and  the  case  of  Gibbons  ».  Ogden,  416. 

Hume,  David,  History  of  England,  quoted,  434. 

Hundred,  the,  an  aggregation  of  townships,  51,  55, 
99;  soon  disappeared  in  America,  61  and  n.,  100 
and  n.;  union  of,  became  shire,  99,  100;  54,  56,  60. 

Hundred  court,  55,  57,  60,  61,  82,  84. 

Hungerford,  Sir  Thomas,  first  Speaker  of  the  Com- 
mons (i377),  84. 

Hunt,  Gaillard,  Life  of  Calhoun,  quoted,  327;  Life  of 
Madison,  561. 

Hunter,  David,  his  essay  at  emancipation  disavowed 
by  Pres.  Lincoln,  343. 

Hunter,  Sir  William,  quoted,  396. 

Hutchinson,  Thomas,  quoted,  96;  126. 

Illinois,  admission  of,  278;  disguised  slavery  in,  278; 

134,  256,  291,  382. 
Illinois  Territory,  organized,  277. 
Impeachment,  power  of,  acquired  by  Parliament,  85. 
Implied  powers,  Marshall  on,  in  McCulloch  v.  Md., 

245- 

Inconveniences,  increase  of,  469. 
Independence  Hall,  129,  is8n. 
India,  398. 

India  House  (Seville),  379,  380. 
Indiana,  admission  of,  277;  disguised  slavery  in,  278; 

134,  256,  382. 
Indiana  Territory,  organized,  277;  attempt  to  legalize 

slavery  in,  277. 
Indian  tribes,  and  title  by  discovery,  91;  commerce 

with,  415.    See  Five   Nations,    Six  Nations,  and 

French  and  Indian  War. 
Indies,  Council  of  the,  380. 
Individual,  dependence  of  the,  on  the  state,  405  seqq.; 

illustrations,  406,  407. 
Individual  rights,  the  narrowing  circle  of,  301,  405, 

448,  462;  reestablishment  of,  the  ultimate  end  to 

be  attained,  465,  466. 
Individualism,  transition  from,  to  collectivism,  402, 

408-411,  448,  462;  orgy  of,  in  France,  403;  the  sub- 
structure of  American  national  character,  404. 
Industrial  revolution,  outcome  of,  463. 
Industrialism,  and  the  waning  of  individualism,  409. 
Innes,  Harry,  216. 
"  Inspiration  theory  "  of  the  origin  of  the  Constitution, 

absurdity  of,  3,  174;  6,  13,  16,  22,  24. 
Inter-citizenship,  in  Articles  of  Confederation,  135, 

136;  reproduced  in  Constitution,  136. 
Intercommunication,  a  potent  ally  of  the  national 

spirit,  299,  300;  effect  of  increase  in  facility  of,  300, 

469. 
International  law,  questions  of,  born  of  the  Civil  War, 

339;  and  the  Monroe  Doctrine,  395. 
Interstate  commerce,  corporations  engaged  in,  359; 

distinguished  from  intrastate,  424;  regulation  of, 

and  police  power  of  states,  425,  426;  does  Federal 

control  extend  to  all  agencies  of?  431,  432. 


Interstate  Commerce  Act  (1887),  420;  construed  by 
Supreme  Court,  421  seqq.;  summary  of  amend- 
ments and  supplementary  acts  prior  to  1910,  429. 
Amending  Act  of  June  IQIO,  intrastate  commerce 
expressly  excluded  in,  428,  429;  new  subject  mat- 
ters in,  429;  various  public-service  companies  in- 
cluded in,  429;  Commerce  Court  created  by,  430, 
and  commission  to  investigate  railroad  securities, 
430. 

Interstate  Commerce  Commission,  created  by  Act  of 
1887,  419;  a  body  corporate,  421;  its  jurisdiction 
denned  by  Supreme  Court,  421 ;  its  power  over  rail- 
road rates  before  1910,  422,  423;  has  judicial,  not 
legislative  power,  423;  its  orders  enforceable  by 
Commerce  Court,  430. 

Intrastate  commerce,  distinguished  from  interstate, 
424;  not  subject  to  commerce  clause  of  the  Consti- 
tution, 424;  state  may  regulate,  but  not  destroy, 
424;  by  Act  of  1910,  expressly  excluded  from  that 
and  Act  of  1887,  428,  429. 

Iowa,  history  of,  286;  admission  of,  286  ;  289. 

Iredell,  James,  218. 

"Irrepressible  conflict,  the,"  and  the  Ordinance  of 
1787,  271;  330. 

Jackson,  President  Andrew,  and  anti-slavery  matter  in 
the  mails,  231 ;  and  the  split  in  the  Republican  party 
(1828),  283;  his  victory  at  New  Orleans,  and  the 
Hartford  Convention,  315;  and  the  nullification 
doctrine,  316  seqq.;  abandons  protection,  316;  and 
the  passage  of  a  nullification  ordinance  by  S.  C., 
319,  320;  his  proclamation,  320;  and  John  Marshall, 
335;  284. 

Jackson,  James,  228,  229. 

James  I,  charter  of  April,  1606,  granting  lands  in 
America,  91;  based  on  English  law,  92;  90,  380. 

Jameson,  Prof.,  Studies  in  the  History  of  the  Federal 
Government,  9,  34,  35,  177,  202. 

Jamestown,  settled  by  the  London  Company  (May, 
1607),  the  first  permanent  settlement  by  English- 
men in  the  new  world,  92;  first  representative 
assembly  at,  96;  first  slaves  in  America  at,  254. 

Japan,  397,  398,  400. 

Jay,  Chief  Justice  John,  President  of  Congress,  159; 
negotiations  for  treaty  with  Spain,  208;  in  New 
York  struggle  over  ratification,  217;  and  the  election 
of  1800,  248;  why  he  left  the  Supreme  Court,  309, 
332;  127,  129,  i3on. 

Jefferson,  President  Thomas,  Madison's  letter  to  (Mar. 
19,  1787),  175. 552;  and  the  election  of  1800, 248, 249; 
reports  ordinance  for  temporary  gov't  of  public 
domain,  256,  257;  his  plan  for  extinction  of  slavery, 
270,  271;  and  the  Louisiana  Purchase,  274  seqq.; 
his  difficulty  as  to  its  constitutionality,  274;  leader 
of  Republicans,  282;  letter  of,  to  Washington,  282; 
and  the  paternity  of  the  Ky.  and  Va.  Resolutions, 
306 ;  the  real  author  of  both,  he  spoke  through  differ- 
ent mouthpieces,  308;  influence  of  Rousseau  and 
the  French  Revolution  on,  308,  403,  404,  462;  his 
fundamental  heresy  in  both  sets  of  resolutions,  309; 
fails  to  appreciate  importance  of  judicial  power,  309; 
attacks  Federal  judiciary,  309;  and  the  "compact 
theory,"  311;  declines  moral  responsibility  for  the 
Ky.  and  Va.  Resolutions,  311;  and  the  Hartford 
Convention,  314;  and  the  Declaration  of  Independ- 
ence, 322;  on  the  right  of  secession,  323;  letter  of,  to 
Taylor  of  Caroline,  323;  and  John  Marshall,  333, 
334;  and  the  Ordinance  of  1787,  382,  383;  hostile 
to  self-government  of  colonies,  383;  and  the  Ameri- 
can system  of  isolation,  390,  391;  letter  of,  to  Mon- 
roe (the  Monroe  Doctrine),  390,  39 1;  advocates 
friendly  relations  with  England,  392;  the  creed  of 
his  party,  404;  the  apostle  of  state  sovereignty  and 
decentralization,  462;  quoted,  n,  147,  279,  280, 
325;  mentioned,  22  and  n.,  39,  43n.,  80,  131,  i69n., 
250,  251,  258,  269,  303,  317.  328,  331,  336,  396. 

Jennifer,  Daniel  of  St.  Thomas,  i6sn.,  211. 

John  (King),  character,  73,  74;  the  barons  conspire 
and  rise  against,  74,  75;  grants  the  Great  Charter, 
75;  and  the  council  at  Oxford,  82. 


666 


INDEX 


Johnson,  Samuel,  218. 
Johnson,  Thomas,  211. 
Johnson,  William  S.,  196,  205,  226. 
Johnson,  Zachariah,  opposes  ratification,  213;  215. 
Johnston,  Alexander,  American  Polit.  Hist.,  quoted, 
27,  276,  279,  305,  403,  404;  Genesis  of  a  New  Eng- 
land State,  97n. 
Jones,  Willie,  218. 
udd,  William,  29. 
udge-made  law,  37 1. 
udges,  federal,  tenure  of,  183,  184. 
udicial  Department.  See  Departments. 
Judicial  inclusion  and  exclusion,"  450,  452.  > 
Judicial  power,  Jefferson's  failure  to  appreciate  Im- 
portance of,  309 
preme  Court  un 
Judiciary,  federal, 

IS35  not  provided  in  Articles  of  Confederation,  152; 
debate  in  Convention  on,  182-184;  clauses  of  Con- 
stitution referring  to,  attacked  by  P.  Henry  and 
upheld  by  Marshall,  214;  attacked  by  Jefferson, 
309,  310. 

Judiciary  Act  of  1789,  226,  227. 
Juries,  states  may  change  common  law  concerning,  368. 
Juries,  trial,  history  9f,  71. 

Jurisprudence,  historical  school  of,  and  the  "  compact 
theory,"  321,  322. 

Jury,  grand.  See  Grand  jury, 
ury,  trial  by,  gradually  supersedes  all  other  modes,  71. 
ury  system,  germs  of,  in  popular  assemblies  of  hun- 
dred and  shire,  60. 

Jury  trial,  in  criminal  cases  and  the  6th  Amendment, 
238  seqq.;  in  civil  cases,  and  the  7th  Amendment, 
240  seqq. 

iusticiar,  office  of,  68. 
ustinian,  Institutes,  347n. 
utes,  52,  53-  See  Low-Dutch  tribes, 
utland,  53. 

Kansas,  admission  of,  295;  288. 

Kansas-Nebraska  Bill  (1854),  288  seqq.;  passed  by 
Northern  and  Southern  Democrats  and  Southern 
Whigs,  294;  opposition  to,  led  to  birth  of  Repub- 
lican party,  294. 

Kean,  John,  257. 

Kemble,  John  M.,  Codex  Diplomatics,  etc.,  in.,  15, 
S9n.;  Saxons  in  England,  in.,  62n. 

Kent  (county),  58. 

Kent,  James,  Chancellor  of  N.  Y.,  416. 

Kentucky,  admission  of,  273;  slaves  in,  273;  compact 
with  Va.,  273. 

Kentucky  Resolutions  (1798-99),  formulated  by  Jef- 
ferson, 306;  substance  of,  306,  307;  supremacy  of 
states,  and  right  of  nullification,  306,  307 ;  how  cir- 
culated, 311;  the  only  replies  antagonistic,  311;  and 
the  Hartford  Convention,  314;  baleful  influence  of, 
down  to  1861,  322;  308,  309,  317,  328,  336. 

King,  power  to  depose,  acquired  by  Parl.,  85;  in  the 
primitive  state,  succeeded  by  ealdorman,  60. 

King  in  Council,  power  of,  reduced  under  Plantagenets 
and  Lancastrians,  85,  86;  judicial  work  taken  from, 
86;  powers  retained  by,  86,  87;  power  of,  revived 
under  Edward  IV,  finally  became  an  engine  of 
tyranny,  87. 

King,  Rufus,  revives  Jefferson's  ordinance  for  tem- 
porary gov't  of  N.  W.  Territory,  257,  258;  Federalist 
candidate  for  President  (1816),  282;  32n.,  44,  167, 
174,  194,  196,  199,  205,  210,  226,  250. 

King's  Bench,  Court  of,  had  its  source  in  the  Curia 
Regis,  71;  85. 

Kingship,  origin  of,  in  Britain,  62;  Woden's  blood  an 
indispensable  condition  of,  62  and  n.  ;  hereditary 
principle  in,  62;  theory  of  election,  62;  develop- 
ment under  William  I,  66,  67;  under  William  II,  67; 
under  Henry  I,  68. 

Kinsey,  James,  127. 

Knights  of  the  shire,  82,  83,  84,  87. 
Know-ye"  measures  in  Rhode  Island,  167,  168. 

Knox,  Philander  S.,  Attorney-General,  and  the  Anti- 
Trust  Act,  439  seqq. 


Labor,  organized,  and  the  state,  407. 

Lacombe,  E.  Henry,  opinion  in  U.  S.  v.  American 
Tobacco  Co.,  in  Circuit  Court,  442. 

Lamb,  Charles,  463. 

Lancaster,  House  of,  85. 

Lancaster,  Pa.,  Congress  at,  iS9n. 

Langdon,  John,  first  Pres.  of  U.  S.  Senate,  209,  220, 
226,  250. 

Langlois,  Charles  V.,  Introduction  aux  Etudes  his- 
toriques,  16  and  n.,  50. 

Langton,  Stephen,  74. 

Lansing,  John,  189,  196,  200,  216,  217. 

Laurens,  Henry,  Pres.  of  Congress,  isgn. 

Laussat,  M.,  276. 

Law,  part  and  parcel  of  the  national  life,  297,  300. 

"Law  of  the  land "  in  the  Great  Charter,  222.  And  see 
"  Due  process  of  law." 

Lawrence,  T.  J.,  Principles  of  International  Law,  39Sn. 

Laws;  lack  of  uniformity  between  state  and  federal, 
and  between  those  of  different  states,  469;  efforts 
to  establish  uniformity,  470. 

Leach,  Dryden,  234. 

Lecky,  William  E.  H.,  on  the  American  Constitution, 
408;  his  Democracy  and  Liberty,  quoted  and  criti- 
cized, 408. 

Lee,  Arthur,  165. 

Lee,  Henry,  216. 

Lee,  Richard  Henry,  Pres.  of  Congress,  iS9n.;  letter  of, 
to  Madison,  162 ;  opposed  to  Federal  Convention, 
178;  tries  to  organize  Southern  confederacy,  211; 
opposes  ratification,  213;  in  N.  Y.  struggle  over 
ratification,  216;  proposes  bill  of  rights,  224  and  n.; 
126,  129,  257,  258,  302. 

Legal  procedure,  need  of  simplification  of,  473. 

Legislation,  increase  in  volume  of,  411. 

Legislative  department.   See  Departments. 

Legislative  power,  of  Congress,  debate  on,  180.  And 
see  Executive  and  legislative  powers. 

Legislative  power  of  states,  theory  of  constitutional 
limitations  of,  105. 

Levying  war,  defined  by  Marshall,  252. 

"  Lewes,  Mise  of,"  83. 

Liberator,  the,  281. 

Lieber,  Francis,  Civil  Liberty  and  Self-Government, 
86n.,  363,  364. 

Lincoln,  President  Abraham,  opposes  Douglas's  theory 
of  slavery  as  a  local  institution,  289;  leader  of  Re- 
publican party,  294;  his  triumph  over  Douglas,  294, 
295;  disavows  Fremont's  and  Hunter's  emancipa- 
tion measures,  343;  hints  at  emancipation  with  com- 
pensation, 343,  3445  quoted,  330;  270. 

Lincoln-Douglas  debates,  289,  294. 

Liquor  traffic,  not  covered  by  i4th  Amendment,  427; 
the  line  drawn  by  Justice  Field,  427,  428;  original 
packages,  428. 

Liquors,  interstate  transportation  of,  423,  424. 

Livingston,  Philip,  127. 

Livingston,  Robert  R.,  in  N.  Y.  struggle  over  ratifica- 
tion, 217. 

Livingston,  William,  127. 

Local  self-government,  origin  of  Old-English  system 
of,  51-61;  Teutonic  system  of,  and  Norman  central 
gov't  fused  under  Angevin  kings,  69  seqq.;  love  of, 
in  original  states,  299;  300,  301. 

Locke,  John,  Fundamental  Constitutions,  99,  120. 

Locomotives,  300. 

Lodge,  Henry  Cabot,  23n. 

London  Company,  royal  grant  to,  91;  settlement  of, 
at  Jamestown,  92;  second  grant  to,  92  and  n.;  its 
charter  revoked,  94;  and  Virginia,  95. 

London  Times,  quoted,  39Sn. 

Long  Parliament,  the,  80,  90,  223,  297. 

Lords,  House  of,  proposed  reform  of  (1911),  298. 

Louisiana,  admission  of,  276,  323;  and  the  Florida 
boundary,  284;  and  a  protective  tariff,  316;  ordi- 
nance of  secession,  338;  and  the  Emancipation 
Proclamation,  344,  345- 

Louisiana,  district  of,  attached  to  Territory  of  Indiana, 
275;  organized  as  Missouri  Territory,  275,  276. 

Louisiana,  province  of,  purchased  from  France,  274; 


INDEX 


667 


bills  for  temporary  gqv't  and  for  division  of,  275; 
slavery  already  established  in,  by  custom,  276. 

Louisiana,  Upper,  289. 

Louisiana  Purchase,  a  brilliant  act  of  diplomacy,  274, 
384  seqq.  And  see  Louisiana,  province  of,  and 
Treaty  of  April  30,  1903. 

Low-Dutch  tribes,  in  England,  52,  57;  created  "a 
Germany  outside  of  Germany,"  53 ;  their  primitive 
political  institutions  the  starting-point  of  American 
constitutional  history,  53;  western  coast  of  Britain 
not  conquered  by,  57;  in  conquered  portion,  planted 
the  entire  fabric  of  Teutonic  life,  57. 

Lowndes,  Rawlins,  opposes  ratification,  an,  212. 

Mably,  Abbe,  Observations,  etc.,  20n.,  in,  116,  117. 

Macaulay,  Thomas  B.,  Lord,  History  of  England,  i. 

McClurg,  James,  174. 

McHenry,  James,  36. 

McKinley,  President  William,  and  the  "  holding  com- 
pany," 438,  439. 

Mackintosh,  Sir  James,  quoted,  296,  297,  341. 

Maclaine,  Archibald,  218. 

McMaster,  John  B.,  Benjamin  Franklin,  quoted,  122; 
382,  383. 

Madison,  President  James,  and  the  proceedings  of  the 
Federal  Convention,  5 ;  his  record  thereof,  published 
in  1841  (see  Madison  Papers),  6;  and  the  "Virginia 
plan,"  ii  seqq.,  22  and  n.,  23  and  n.,  24,  174,  175;  his 
letters  to  Jefferson,  Randolph  and  Washington,  175, 
177,  552-557;  on  the  credit  due  P.  Webster's  initi- 
ative, 14;  and  Webster's  pamphlet,  26,  27,  40;  and 
the  Pinckney  "  plan,"  33;  his  preface  to  the  Debates, 
quoted,  37,  39;  the  first  "  sketch  on  paper"  of  the 
Constitution,  39;  and  the  Albany  meeting  of  1754, 
121 ;  on  P.  Webster  and  Hamilton,  161,  162;  and  the 
calling  of  the  Federal  Convention,  162;  proposes 
"politico-commercial  commission,"  167;  his  mo- 
tion concerning  suffrage,  etc.,  180;  and  the  judi- 
ciary, 183,  184;  on  the  organization  of  Congress, 
184;  on  basis  of  representation,  196;  and  the  action 
of  Mass,  on  the  Constitution,  209,  225;  and  rati- 
fication by  Virginia,  213,  214,  215,  216;  letter  of 
Hamilton  to,  217,  and  his  reply,  218;  leader  of 
House  in  ist  Congress,  227;  offers  12  Amendments 
to  remove  apprehensions  as  to  security  of  popular 
rights,  228;  nature  of  the  amendments,  228;  on  the 
Ordinance  of  1787,  269;  on  the  admission  of  Vt., 
273;  ostensible  author  of  Va.  Resolutions,  307,  308; 
as  earnest  a  Federalist  as  Washington  in  the  early 
days,  308  and  n.;  and  the  negotiations  with  Can- 
ning (1823),  39i;  on  the  commerce  clause,  416; 
quoted,  I45n.,  146;  mentioned,  14,  15,  20,  28,  36, 
42,  43,  in,  Ii6n.,  n8n.,  131,  151,  157,  160,  169, 
170,  171,  172,  174,  181,  190,  205,  226,  250,  257,  268, 
302,  303,  468. 

Madison  Papers,  publication  of  the,  6, 37 ;  "an  invalu- 
able storehouse,"  37.* 

Magistrates,  in  the  Teutonic  state,  55. 

Magna  Carta.  See  Great  Charter. 

Magnum  Concilium,  the,  under  Henry  I,  68;  under 
Henry  II,  a  perfect  feudal  court,  70;  69. 

Mahan,  A.  T.,  Sea  Power  in  its  Relation  to  the  War  of 
1812,  379. 

Mails,  and  decision  in  U.  S.  v.  Rapier,  230-232. 

Maine,  Sir  Henry,  Popular  Government,  96;  Village 
Communities,  113;  Ancient  Law,  ii4n. 

Maine,  history  of,  278,  279;  included  in  new  charter  of 
Mass.,  278,  279;  admission  of  (1820),  279. 

Manchuria,  railways  in,  400. 

Manorial  system  of  townships  under  feudalism,  101, 
102;  retained  in  Md.  and  N.  Y.,  102,  103. 

Mansfield,  William  Murray,  Lord,  and  Sommersett's 
case,  234,  253,  291,  344. 

Marbury  v.  Madison  (1803),  the  first  case  of  annul- 
ment of  a  national  law  by  Supreme  Court,  331. 

Mark,  the  (became  English  township),  54,  55,  101. 

Mark-moot,  the,  origin  of  town-meeting,  54,  55. 

Marshall,  John,  Chief  Justice,  and  the  supremacy  of 


the  Supreme  Court,  153,  154.  3io;  on  the  Federalist, 
2ii ;  extols  federal  judicial  system,  214;  first  sat  as 
chief  at  first  session  of  Supreme  Court  in  Washing- 
ton, 221,  331;  presides  at  trial  of  Burr,  251,  252;  the 
dominating  mentality  in  the  struggle  of  the  na- 
tional spirit  in  the  courts,  331;  scope  of  his  work, 
331, 335;  the  mouthpiece  of  the  Court,  332;  the  most 
notable  products  of  his  judicial  career,  335;  his 
work  anticipated  and  defined  by  P.  Webster,  335; 
his  rule  of  construction,  354;  opinion  in  Barren  v. 
Baltimore,  237;  in  McCulloch  v.  Maryland,  245, 
246,  311;  in  American  Ins.  Co.  v.  Canter,  266;  in 
Cohens  v.  Virginia,  329,  414,  415;  in  American  Ins. 
Co.  v.  Bales  of  Cotton,  385;  in  Dartmouth  College 
».  Woodward,  412;  80,  155,  250,  340. 

Martial  law,  344,  345. 

Martin,  Alexander,  174,  226. 

Martin,  Luther,  36,  45,  190,  194,  196,  198. 

Maryland,  colony,  and  the  Annapolis  Convention,  25, 
26;  the  hundred  retained  in,  61;  the  first  proprietary 
gov't  to  bear  fruit,  98,  99;  manorial  system  retained 
in,  102,  103;  sends  delegates  to  Stamp  Act  Congress, 
125,  and  to  ist  Continental  Congress,  127;  120. 

Maryland,  constitution  of  1776,  and  ch.  39  of  Great 
Charter,  76,  362;  and  the  Articles  of  Confederation, 
130;  effect  of  her  refusal  to  ratify  them,  133,  134, 
255;  her  demand  for  national  dominion  over  North- 
west Territory  triumphs,  134,  135;  ratifies  Consti- 
tution, an;  137,  166,  167,  I73n.,  185,  I99n.,  229, 
271,  302. 

Maryland  and  Virginia,  joint  commissioners  of,  and 
their  recommendations,  165,  166. 

Mason,  George,  opposed  to  Constitution,  178;  on 
organization  of  Congress,  184;  and  the  method  of 
electing  President,  204,  205;  opposes  commerce 
clause,  207,  208  and  n.;  opposes  ratification,  213; 
36,  43,  147,  i6sn.,  174,  198,  206,  215,  250,  271,  302, 
346.  347,  362,  561. 

Massachusetts  (state),  constitution  of  1780,  and  ch. 
39  of  Great1  Charter,  77;  and  the  Federal  Conven- 
tion, 167,  i?3n.;  struggle  over  ratification,  209,  210; 
importance  of  her  action,  209,  which  is  commended 
by  Madison,  225;  ratifying  convention  in,  and  pro- 
posed amendments,  225;  and  the  N.  W.  Territory, 
255;  and  Maine,  278,  279;  opposed  to  Ky.  and  Va. 
Resolutions,  311;  the  storm-centre  of  opposition  to 
War  of  1812,  313;  and  the  Hartford  Convention, 
313,  314;  secession  spirit  in,  323,  324;  199,  272,  363. 

Massachusetts  Bay,  Governor  and  Company  of 
(1629),  93;  charter  of,  canceled  (1684),  94;  nature 
of  its  charter,  97;  a  typical  charter  colony,  97,  98; 
independence  of,  curtailed  under  new  charter  (1691), 
98;  proposes  Congress  at  N.  Y.  (1765),  124,  125; 
and  the  ist  Continental  Congress,  125,  126;  asks 
for  general  congress  of  committees,  126;  charter 
suspended  (1774),  126;  claim  of,  to  western  lands, 
134;  119,  120,  121,  137. 

Mathews,  justice  Stanley,  opinion  in  Hurtado  v.  Cali- 
fornia, 80,  81,  365,  366. 

Matilda,  daughter  of  Henry  I,  68. 

May,  Samuel  J.,  Some  Recollections  of  our  Anti-Slavery 
Conflict,  326. 

Mecklenburg  Declaration  of  Independence,  502-509. 

Mecklenburg  Resolves,  502-509. 

Meigs,  The  Growth  of  the  Constitution,  35,  201,  202. 

Merchant,  a,  the  father  of  the  Constitution,  468. 

Mercia,  kingdom  of,  58;  conquests  of,  59. 

Mexican  War,  the,  sequel  of  annexation  of  Texas,  286; 
a  victory  for  slavery,  286. 

Mexico,  revolt  of,  285;  Texas  declares  her  independ- 
ence of,  285;  and  slavery,  286,  287;  French  inter- 
vention in,  and  the  Monroe  Doctrine,  394;  in  1852, 
398;  U.  S.  type  of  federal  union  reproduced  in,  459; 
constitution  of,  459,  460. 

Mexico,  Gulf  of,  391,  396. 

Michigan,  Territory  of,  286. 

Michigan,  admission  of,  283;  134,  256,  382. 

Middle  Saxons  (Middlesex),  58. 


This  publication  is  quoted  very  frequently  in  many  parts  of  this  volume. 


668 


INDEX 


Mifflin,  Thomas,  Pres.  of  Congress,  iS9J  127. 

Military  organization  in  the  Teutonic  state,  56. 

Militia,  232,  233. 

Millard,  Thomas  F.,  The  New  Far  East,  400,  401. 

Miller,  Justice  Samuel  F.,  opinion  in  Davidson  v.  New 
Orleans,  quoted  and  criticized,  78,  81,  237,  365;  in 
Slaughter-House  cases,  350,  3SL  354.  37L  372. 

Minister  of  Foreign  Affairs,  148. 

Minister  of  War,  148. 

Ministers  of  State,  in  P.  Webster's  plan,  148;  their 
proposed  functions,  148. 

Minnesota,  Territory  of,  289. 

Minnesota,  admission  of,  289;  286. 

Mississippi,  Territory  of,  organized,  277;  Georgia's 
claim  to,  277,  278;  slavery  not  prohibited  in,  277; 
divided  between  Ala.  and  Miss.,  277. 

Mississippi,  admission  of,  278;  ordinance  of  secession, 
338;  remodeled  constitution  of,  passed  upon  by 
Supreme  Court,  374,  375- 

Mississippi  River,  free  navigation  of,  secured  by 
Louisiana  Purchase,  274;  land  east  of,  nearly  all 
settled  by  1840,  286;  123,  208. 

Missouri,  Territory  of,  279-281. 

Missouri,  admission  of,  282;  Dred  Scott  case  origin- 
ated in,  291 ;  289. 

Missouri  Compromise,  terms  of,  280,  281;  made  in- 
evitable the  admission  of  a  preponderating  number 
of  free  states,  281;  movement  for  repeal  of,  288;  in 
the  Kansas- Nebraska  Bill,  288;  constitutionality  of, 
and  the  decision  in  Dred  Scott  case,  290-292;  271, 
286,  329. 

Mobile,  seized  by  U.  S.,  284. 

Mommsen,  Theodor,  History  of  Greece,  non. 

Monarchy,  power  of,  revived  under  House  of  York, 
85;  form  assumed  by,  in  France  under  Hugh  Capet, 
reproduced  in  all  subsequent  European  states,  114. 

Monopolies,  Emp.  Zeno's  edict  against,  433;  by  royal 
patent  under  Edward  VI  and  Elizabeth,  434;  stat- 
ute of  21  James  I  against,  434;  later  English  deci- 
sions more  favorable  to,  435;  attitude  of  American 
courts  toward,  433  seqq.  And  see  Trusts  and  mono- 
polies. 

Monopolists  and  legitimate  competitors,  line  between, 

"  Monopolize,"  Morawetz's  definition,  447,  451 ;  mean- 
ing of,  discussed,  450,  451;  the  question  of  degree, 
45i. 

Monopoly,  struggle  of  the  masses  against,  464. 

Monroe,  President  James,  and  ratification  of  the  Con- 
stitution, 213;  election  as  President,  282;  submits 
Canning- Rush  correspondence  to  Jefferson,  390; 
Jefferson's  letter  to,  390,  391;  his  message  of  Dec., 
1823,  391,  392,  393;  80,  303,  396. 

Monroe  Doctrine,  the,  genesis  of,  274,  389,  390;  its 
assertion  forced  by  designs  of  Holy  Alliance,  390; 
formulated  in  message  of  Dec.,  1823,  391,  392;  Jef- 
ferson and  J.  Q.  Adams  the  real  authors  of,  393;  its 
scope  widened  by  Pres.  Polk,  in  1845,  393,  394;  and 
French  intervention  in  Mexico,  394;  definition  of, 
completed  by  Pres.  Cleveland,  394,  395 ;  its  validity 
as  a  matter  of  international  law,  395;  extension  of, 
since  1823,  395. 

Montague,  Gilbert  H.,  The  Defects  of  the  Sherman  Anti- 
Trust  Law,  quoted,  435,  438. 

Montesquieu,  Charles  de  Secondat,  Baron  de,  146, 
361,  362. 

Montfort,  Simon  of,  his  Parliament  of  1265,  83. 

Moody,  Justice  William  H.,  opinion  in  Twining  ».  New 
Jersey,  82,  236,  366,  367,  369. 

Morawetz,  Victor,  The  Supreme  Court  and  the  Anti- 
Trust  Act,  quoted,  443-447. 

Morgan,  Lewis  A.,  loon. 

Morkere,  Earl  of  Northumbria,  64. 

Mormon  Church,  act  of  Congress  disestablishing  and 
annulling  its  charter,  held  constitutional,  23on. 

Mormonism,  294. 

Morris,  Gouverneur,  on  apportionment  of  taxation, 
198,  199;  and  the  method  of  electing  President  and 
Vice- President,  205;  final  draft  of  Constitution  is  his 
work,  206;  44, 174, 179, 190,  226,  271,347^,415,416. 


Morris,  Robert,  compared  with  Webster  and  Hamil- 
ton, 161;  41,  44,  174,  190,  226,  250. 
Miiller,  Max,  quoted,  296. 
Muskingum,  O.,  settlement  of  Ohio  Company  at,  269. 

Nagel,  Charles,  quoted,  465. 

Napoleon  I,  sells  Louisiana  province  to  U.  S.,  274; 
and  the  Code  Napoleon,  466,  467. 

National  Civic  Federation,  and  its  work  for  uniform- 
ity of  legislation,  470,  471. 

National  Republican  party,  name  assumed  by  sup- 
porters of  Adams  in  1828,  283 ;  later  known  as  Whigs, 
283. 

National  system,  opposition  to,  after  submission  of 
Constitution  to  the  states,  302. 

Nationality,  idea  of,  promoted  by  Louisiana  Purchase, 
274;  new  conception  of,  and  its  effect,  301. 

Nations,  modern,  relations  of,  to  their  colonies,  378 
seqq. 

Naturalized  foreigners,  and  the  Hartford  Convention, 
315- 

Navigation,  covered  by  commerce  clause,  416. 

Navigation  Acts  (British)  of  1651,  379. 

Neal,  James,  209. 

Nebraska,  bill  to  organize  Territory  of,  288. 

Negro,  the,  in  Florida,  284;  main  purpose  of  I4th 
Amendment  to  establish  citizenship  of,  351;  dis- 
tinction between  social  and  political  rights  of,  356, 
3575  right  of  suffrage  given  to,  by  isth  Amendment, 
372;  in  Alabama,  376. 

Negro  slavery.  See  Slavery. 

Negro  troops,  employment  of,  authorized,  343. 

Neilson,  John,  208. 

Nelson,  Thomas,  opposed  to  Federal  Convention, 
178;  302. 

Netherlands,  United  Provinces  of  the,  a  confederated 
state,  116;  powers  of  States-General,  116;  weakest 
part  of  their  constitution,  117;  gov't  of,  reorganized, 
117;  the  Batavian  Republic  born,  117;  20,  109,  118. 

Neutrality  proclamation  of  1793,  304. 

New  England,  opposed  to  "  restrictive  system,"  312; 
sole  rallying-point  of  Federalism  in  1812,  312,  313; 
and  the  Hartford  Convention,  313  seqq.;  doctrine 
of  secession  rampant  in,  326. 

New  England  colonies,  respective  r61es  of  county  and 
township  in,  101,  102;  conference  of  governors  of, 
120;  "consociation  of,"  119.  See  United  Colonies 
of  New  England. 

New  England  Federalism,  and  the  Essex  Junto,  312. 

New  France,  boundaries  of,  123. 

New  Hampshire,  originally  a  proprietary  gov't,  but 
became  a  royal  colony,  99;  in  ist  Continental  Con- 
gress, 127. 

New  Hampshire,  constitution  of  1784,  and  ch.  39  of 
the  Great  Charter,  77;  riots  in,  167;  ratifies  Con- 
stitution, 212;  opposed  to  Va.  and  Ky.  Resolutions, 
311;  and  the  Hartford  Convention,  313,  314;  137, 
229,  273,  363. 

"New  Hampshire  grants,  the"  (Vermont),  272,  273. 

New  Haven  colony,  97,  119. 

New  Jersey,  colony  of,  and  the  Annapolis  Convention, 
26;  originally  proprietary  gov't,  but  became  royal 
colony,  99;  represented  in  Stamp  Act  Congress, 
125,  and  in  ist  Continental  Congress,  127;  120. 

New  Jersey,  and  the  Articles  of  Confederation,  133, 
134;  ratifies  Constitution,  208;  and  the  N.  W.  Ter- 
ritory, 255;  last  remnant  of  slavery  in,  272;  137, 157, 
167,  173,  i99n.,  229,  271. 

New  Jersey  plan,  38,  580-582;  of  no  importance,  38: 
introduced  by  Paterson,  190,  191 ;  simply  proposed 
revision  of  Articles  of  Confederation,  191;  in  Com. 
of  Detail,  200.  And  see  Paterson,  William. 

New  Mexico,  Territory  of,  287,  386. 

New  Netherland,  119- 

New  Orleans,  founded  by  the  French,  1 23 ;  battle-of ,  315. 

New  York,  colony  of,  originally  a  proprietary  gov't, 
but  became  a  royal  colony,  99;  manorial  system 
retained  in,  103;  represented  in  Stamp  Act  Congress, 
125, 126,  and  in  ist  Continental  Congress,  126, 127; 
120. 


INDEX 


669 


New  York,  her  claim  to  western  lands,  134;  lays 
double  duty  on  goods  imported  in  British  ships, 
166;  defeats  proposed  amendment  of  Articles  of 
Confederation  empowering  Congress  to  lay  duties, 
168;  opposes  commerce  clause  of  Constitution,  207; 
struggle  in  convention  over  ratification,  216-218; 
finally  ratifies,  218;  opposed  to  Va.  and  Ky.  Reso- 
lutions, 311;  commission  to  promote  uniformity  of 
legislation,  470;  137,  138,  I57,  158,  173.  ipo,  229, 
271,  273,  302. 

New  York  City,  Stamp  Act  Congress  meets  at,  124, 
125;  Congress  assembles  at,  159  and  n.,  220. 

Newspapers,  and  the  call  for  the  Federal  Convention, 
105. 

Nicholas,  George,  fathered  Jefferson's  Kentucky 
Resolutions,  306,  308;  216. 

Nicholson,  Joseph  H.,  quoted,  38sn. 

Norman  kings,  entire  administrative  machinery  of 
English  Constitution  originated  in  system  of  cen- 
tral gov't  established  during  their  reigns,  69.  - 

Norman  superstructure  and  Teutonic  substructure, 
fusion  of,  51,  52,  69  seqq. 

Normandy,  Duchy  of,  64  seqq.;  lost  to  England,  74. 

Normans,  revolt  against  William  II,  67. 

North,  Frederick,  Lord,  Ministry  of,  carries  Boston 
Port  Bill,  125,  126;  other  bills  carried  by,  126. 

North,  the,  and  the  Dred  Scott  case,  293;  and  the 
protective  tariff,  316;  leaders  of  opinion  in,  made 
war  on  the  Constitution  itself  by  attacking  Dred 
Scott  decision,  330;  unprepared  for  war  and  the 
consequences  of  victory,  342;  reconstruction  policy 
of,  evolved  gradually,  342. 

North  American  Review,  ison. 

North  Briton,  no.  45,  234. 

North  Carolina,  colony  of,  represented  in  ist  Conti- 
nental Congress,  127. 

North  Carolina,  constitution  of  1776,  and  ch.  39  of  the 
Great  Charter,  76,  362;  power  to  annul  statutes 
assumed  by  Supreme  Court  of,  104;  decisive  action 
of,  in  Federal  Convention,  199  and  n.;  ratifies  Con- 
stitution, 218,  219  and  n.;  anti-slavery  feeling  in, 
254;  ordinance  of  secession,  338;  137,  167,  173,  198, 
229,  271,  273. 

North  Carolina  Gazette,  and  the  Mecklenburg  Re- 
solves, 502. 

North  Folk  (Norfolk),  58. 

Northumbria,  conquests  of,  59. 

Northwest,  increase  of  population  in,  before  1830, 
286. 

Northwestern  Territory,  taken  from  France,  question 
of  disposition  of,  and  ratification  of  the  Articles  of 
Confederation,  134,  135;  claimants  of,  134;  Md. 
alone  contends  for  national  dominion  over,  134; 
Md.'s  contention  established,  134,  255;  and  the 
Ordinance  of  1787,  255  seqq.;  divers  Indian  nations 
renounce  claim  of  title  in,  255,  256;  states  formed 
from,  256;  Jefferson's  plan  for  temporary  gov't  of, 
256,  257;  slavery  question  in  that  plan,  256,  257; 
slavery  excluded  from  Ordinance  of  1787,  by  vote 
of  slave-holding  states,  258,  269,  270;  gov't  of,  and 
Congress,  265;  Ohio  the  first  state  formed  in,  274; 
rapid  increase  of  population  in,  277;  divided  by 
Congress  (1800),  277;  government  of,  382-384. 

Nott,  Charles  C.,  The  Mystery  of  the  Pinckney 
Draught,  9,  23,  33,  34,  36,  175,  177,  201,  203. 

Nullification,  the  culmination  of  the  doctrine  of  state 
sovereignty,  281;  right  of,  asserted  by  both  Ky. 
and  Va.  Resolutions,  307,  310;  and  the  Hartford 
Convention,  315,  3i6;  defined,  316,  317;  doctrine 
of,  first  applied  to  practical  politics  by  Calhoun, 
316  seqq.;  banquet  of  April,  1830,  318,  319;  not 
to  be  confused  with  doctrine  of  secession,  320,  321; 
Pres.  Jackson's  proclamation  concerning,  320;  not 
revived  after  1833,  321. 

Nullification  ordinance,  passed  by  legislature  of  S.  C., 
319;  its  enforcement  suspended  by  private  citizens, 
320;  repealed  by  S.  C.  convention,  320. 

Offa,  King  of  Mercia,  59. 

Ohio,  Territory  of,  organized,  277. 


Ohio,  admission  of,  273,  274;  first  state  in  N.  W.  Ter- 
ritory, 274;  134,  256,  382. 

Ohio  Company,  purchase  of  lands  by,  268,  269. 

"  Ohio  fever,"  279. 

Ohio  River,  the,  123. 

Oldenburg,  53. 

Old-English  Commonwealth,  substructure  of,  62; 
weakness  of  its  superstructure,  63,  64. 

Order  in  Council  (British)  of  July  2,  1783,  168. 

Orders  in  Council,  313. 

Ordinance  of  1787,  255,  257  seqq.;  reported  by  Com- 
mittee of  Congress,  257  and  n.,  258;  slavery  not 
mentioned  in  first  draft,  258 ;  amended  in  that  respect, 
258;  a  compact  between  the  states,  258;  Virginia's 
assent  to,  and  its  effect,  258,  259;  laid  foundation 
of  colonial  system  of  U.  S.,  265;  restricted  right  of 
suffrage  in,  267;  praised  by  Webster  and  Madison, 
269;  no  constitutional  authority  for,  269;  ratified 
by  ist  Congress  (Aug.,  1789),  277;  our  first  effort 
at  colonial  gov't,  382  seqq.;  no  hint  of  self-gov't  in, 
383;  full  text  of,  259-265. 

Ordinances,  and  the  King  in  Council,  87. 

Oregon,  Territory  of,  organized,  289;  controversy  with 
England  concerning,  393,  394;  398. 

Oregon,  history  of,  289;  admission  of,  289. 

Orient,  relations  of  U.  S.  with,  396  seqq.;  trade  and 
population  of,  396,  397. 

Original  packages,  law  as  to,  428. 

Orleans  Territory  (southern  part  of  province  of  Louisi- 
ana), 275;  territorial  gov't  of,  substantially  a  copy 
of  system  created  by  Ordinance  of  1787,  275,  384; 
civil  code  of,  277;  admitted  to  Union  as  Louisiana 
(1812),  276. 

Ottawas.  and  the  N.  W.  Territory,  255. 

Oxford,  council  at,  the  first  representative  Parliament 
(1213),  82. 

Paca,  William,  211. 

Pacific  Coast  in  1852,  398. 

Pagus.  See  Hundred. 

Paine,  Thomas,  Declaration  of  the  Rights  of  Man,  462. 

Palgrave,  Sir  Francis,  Rise  and  Progress  of  the  English 
Commonwealth,  in.,  113;  History  of  Normandy  and 
England,  in.;  quoted,  15,  16. 

Panama  Canal,  building  of,  contemplated  by  Jeffer- 
son, 396;  necessity  of,  396. 

Papal  supremacy,  and  Cromwell,  88. 

Paper-money  craze,  168. 

Paris,  Treaty  of  (1763),  124. 

Paris,  Treaty  of  (1783),  156. 

Parish,  the,  ecclesiastical  synonym  of  township  under 
feudal  system,  101,  102;  in  Va.,  103. 

Parliament,  first  representative,  at  Oxford  (1213),  82; 
sole  right  to  lay  taxes  acquired  by,  under  Confirmatio 
cartarum,  84;  divided  into  two  houses  under  Ed- 
ward III,  84,  85;  development  of  its  power,  85;  de- 
poses Edward  II  (1327),  and  Richard  II  (1399),  85; 
advance  made  by,  between  Norman  Conquest  and 
end  of  I4th  century,  85  seqq.;  and  the  Assembly  of 
Estates,  87;  increasingly  important  role  of  Commons 
in,  87;  impotence  of,  during  Tudor  and  early  Stuart 
reigns,  87;  and  Cromwell,  88;  how  regarded  by 
colonists,  106,  and  by  English  statesmen,  106,  107; 
conflict  of  these  theories  the  cause  of  the  Revolu- 
tion, 107;  repeals  Stamp  Act,  but  passes  declara- 
tory act  of  full  power  over  colonies,  125;  importance 
of,  in  constitution-making,  298;  omnipotence  of, 
299;  American  colonists  denied  representation  in, 
381;  claims  right  to  legislate  on  colonial  concerns, 
381,  382.  And  see  Long  Parliament. 

Parliament  of  1254,  83. 

Parliament  of  1265  (Montfort's),  83. 

Parliament  (Great)  of  1295,  completes  transition  from 
feudal  council  to  council  of  estates,  83. 

Parliamentary  system,  collapse  of,  under  House  of 
Lancaster,  85;  conflict  between,  and  conciliar  sys- 
tem, 90. 

Parsons,  Samuel  H.,  268  and  n. 

Parties,  growth  of,  and  changes  in,  in  U.  S.,  1783-1820, 
281,  282. 


INDEX 


Paterson,  William,  his  "  plan  "  simply  proposed  re- 
vision of  Articles  of  Confederation,  22;  34,  36,  45, 
170,  174,  I77i  190,  191,  196,  198,  226. 

Peckham,  justice  Rufus  W.,  opinionj  in  Pope  v.  Will- 
iams, 373,  374- 

Pell,  Philip,  only  member  of  Continental  Congress 
present  at  its  last  meeting,  268. 

Pendleton,  Edmund,  president  of  Virginia  convention 
(1788),  213,  214;  126,  216. 

Penn,  William,  his  plan  for  union  of  the  colonies,  120, 
483. 

Pennsylvania,  colony  of,  a  proprietary  gov't  down  to 
Revolution, '99;  represented  in  Stamp  Act  Congress, 
125,  and  ist  Continental  Congress,  127. 

Pennsylvania,  constitution  of  1776,  and  ch.  39  of  the 
Great  Charter,  76,  362,  363;  tariff  acts  of,  160; 
opposes  bicameral  legislature,  179;  ratifies  Consti- 
tution, 208;  and  the  excise  tax,  303;  whiskey  insur- 
rection in,  303;  and  the  Supreme  Court,  333,  334; 
137,  138,  157,  IS8,  167,  173,  195,  199,  229. 

Pen-in,  John  W.,  The  German  Social  Democracy,  46311. 

Peters,  Richard,  334. 

Petition,  right  of,  and  the  ist  Amendment,  232  and  n. 

Petition  of  Right  (1628),  223,  233,  297. 

Philadelphia,  ist  and  2d  Continental  Congress  meet 
at  (1774),  125, 129;  Congress  driven  from,  159;  tem- 
porary seat  of  government,  220. 

Philip  II,  88. 

Philippine  Islands,  396. 

Pierce,  President  Franklin,  his  election  destroyed  Whig 
party,  287,  288. 

Pilots  and  pilotage,  and  the  commerce  clause,  418. 

Pinckney,  Charles,  his  Observations,  1 1 ;  furnished  cayy 
of  his  plan  for  printing,  but  its  exact  text  is  in  doub\ 
33,  34;  quoted,  33,  34;  and  P.  Webster's  Disserta- 
tion, 40;  his  argument  on  the  power  of  the  execu- 
tive, 181;  on  the  New  Jersey  plan,  191;  in  legisla- 
ture of  S.  C.,  211 ;  and  the  commerce  clause,  415; 
14,  42,  44,  160,  162,  169,  170,  171,  i?2,  174,  226, 
250.  And  see  Pinckney  plan. 

Pinckney,  Charles  Cotesworth,  on  organization  of 
Congress,  184;  44,  174,  197  and  n.,  198  n,  211,  212, 
248. 

Pinckney,  Thomas,  212. 

V  Pinckney  plan,"  of  Constitution  the  most  import- 
ant before  the  Convention,  9;  his  "  plan  "  all  ready 
beforehand,  n  seqq.,  22,  23,  24;  its  exact  text  in 
doubt,  33,  34;  found  in  outline  in  Wilson  MS.,  35; 
the  only  plan  actually  presented  to  the  Convention, 
36;  was  largely  used  in  Com.  of  Detail,  36;  pre- 
sented to  the  Convention,  176;  compared  with  Vir- 
ginia plan,  176;  criticized  by  Madison,  176,  177; 
contains  the  best  version  of  P.  Webster's  invention, 
177;  referred  to  Com.  of  Detail,  178,  200;  divers 
points  in,  180,  183,  184;  by  far  the  most  complete, 
187;  importance  of,  in  estimating  work  of  Com.  of 
Detail,  201  seqq.;  full  text  of,  from  the  Madison 
Papers,  562-69.  And  see  Nott,  Charles  C.,  and 
Pinckney,  Charles. 

Pipe-lines,  and  the  Act  of  1910,  429. 

"  Plans,"  three,  for  the  work  of  the  Federal  Conven- 
tion, prepared  before  its  meeting,  n  seqq.;  sub- 
stantially identical,  and  drawn  from  a  common 
source,  13,  22  seqq. 

Plantagenet,  Geoffrey,  68. 

Plymouth,  92,  97. 

Plymouth,  colony  of,  119  and  n. 

Plymouth  Company,  royal  grant  to,  91,  92;  Plymouth 
settled  by,  92;  surrenders  charter,  93;  278. 

Police  power,  and  the  "  contract  clause,"  413. 

Political  problems,  transition  from,  to  economic,  463 

Political  science,  America's  first  contribution  to,  103. 

Polk,  President  James  K.,  favors  annexation  of  Texas, 
285;  extends  Monroe  Doctrine,  393,  394. 

Pollock,  Sir  F.,  History  of  the  Science  of  Politics,  308. 

Poly  bios,  the  Greece  of,  no  and  n. 

Population,  effect  of  increase  of,  in  the  colonies,  on 
the  federation  idea,  123;  insisted  on,  by  larger 
states,  as  basis  of  representation  in  both  houses, 


195;  of  the  U.  S.,  in  1790,  272;  comparative  increase 
of,  in  Southwest  and  in  Northwest,  before  1830,  286. 

Porto  Rico,  after  Spanish  War  (1898),  388;  after 
Foraker  Act  (1900),  388,  389;  396. 

Postnati,  case  of  the.   See  Calvin's  case. 

Poughkeepsie,  convention  at,  217,  218. 

President  of  U.  S.,  method  of  election  of,  under  P. 
Webster's  plan,  148;  various  plans  for  election  of, 
204,  205;  report  of  Com.  on  Unfinished  Portions, 
204n.,  205;  method  of  election  of,  changed  by  I2th 
Amendment,  247  seqq.;  Hartford  Convention  re- 
commends that  he  be  not  reeligible,  315;  powerless 
to  abolish  slavery,  345;  provisions  of  i4th  Amend- 
ment concerning  election  of,  371;  has  unfettered 
power  over  conquered  territory,  387. 

President-general  of  all  the  colonies,  provided  for  in 
Coxe's  and  Franklin's  plan  for  union,  121,  122. 

Presidential  election  of  1800,  and  the  i2th  Amend- 
ment, 248,  249;  of  1876,  249,  250. 

Press,  freedom  of  the.  See  Freedom  of  the  Press. 

Princeton,  Congress  at,  159  and  n. 

Principes.  See  Magistrates. 

Privateers,  American,  commissioned  by  Genet,  304. 

Proprietary  system  of  colonial  gov't,  98,  99;  the  pri- 
mary assembly,  98,  99;  supplanted  by  a  representa- 
tive system,  99;  the  proprietors  the  medium  through 
which  the  Crown  granted  self-government  to  the 
colonies,  99. 

Proprietors.  See  Proprietary  system. 

Providence,  97. 

Public  lands,  the  Confederation's  only  available  source 
of  funds,  256;  declared  to  be  public  domain,  etc.,  256. 

Public  opinion,  influence  of,  in  England  and  America, 
401. 

Punishment,  cruel  and  unusual,  prohibited  by  8th 
Amendment,  242. 

Pure-food  laws,  and  the  commerce  clause,  427. 

Puritans,  persecution  of,  402. 

Putnam,  Rufus,  and  the  public  domain,  256;  268. 

Quebec,  123. 

Questions  of  fact.  See  Fact. 

Quincy,  Josiah,  on  the  right  of  secession,  323. 

Quota  system,  failure  of,  synchronous  with  Webster's 

invention,  155  seqq.;  its  last  stage,  157,  158.   And 

see  Requisition  system. 
Quotas,  basis  of  the  scheme  of  taxation  in  Coxe's  and 

Franklin's  plan,  122. 

Railway  capitalization,  first  steps  toward  Federal  con- 
trol of,  430;  statistics  of,  430,  431. 

Railway  rates,  fixed  by  Interstate  Commerce  Com., 
court  may  pass  upon  their  reasonableness,  422,  425. 

Railway  securities,  national  commission  to  investi- 
gate, 430. 

Railways,  right  of  Congress  to  grant  charters  to,  with- 
out consent  of  states,  420;  traffic  on,  regulated  by 
common  law  prior  to  Act  of  1887,  421;  objects  of 
that  act,  421,  422;  interstate,  liable  to  state  regula- 
tion and  taxation  of  strictly  intrastate  service,  426; 
systems  of  state  statutes  relating  to,  433. 

Raleigh,  Sir  Walter,  89. 

Raleigh  Tavern,  126. 

Randolph,  Edmund,  presents  Virginia  plan  to  the 
Convention,  22,  23,  174,  175;  Pres.  of  Congress, 
159;  Madison's  letter  to,  175,  177,  555;  on  the 
organization  of  the  executive  power,  181;  his  ten- 
tative draft  of  a  constitution,  201,  202;  quoted,  205, 
208,  213;  converted  by  Washington,  213;  and  the 
authorship  of  the  Virginia  plan,  561;  34,  39,  43,  174, 
196,  198,  214,  216,  223,  250,  415. 

Randolph,  John,  206,  277. 

Randolph,  Peyton,  Pres.  of  ist  Continental  Congress, 
126. 

Rawle,  William,  A  View  of  the  Constitution,  324,  325. 

Read,  George,  174. 

"Recognitions,"  71. 

Reconstruction,  342. 

Reeve,  the,  61,  82,  84. 

Reeves,  John,  History  of  English  Law,  243n. 


INDEX 


67I 


Reform  bills  (English),  297. 

Regrating,  etc.,  statute  of  Edward  IV  against,  433. 

Religious  denominations,  split  by  slavery  question, 
293,  294. 

Religious  liberty,  secured  by  ist  Amendment,  230. 

Renaissance,  the,  in  England.  See  English  Renais- 
sance. 

Representation  and  taxation,  correlative  terms,  72. 

Representation  in  Congress,  debate  on  basis  of,  195 
seqq. 

Representative  assembly,  first  in  America,  met  at 
Jamestown,  July,  1619,  96. 

Representative  government,  origin  of,  82;  collapse  of, 
on  Continent  of  Europe,  88. 

Representative  system,  germs  of,  in  popular  assem- 
blies of  hundred  and  shire,  60;  and  the  taxation  of 
personal  property,  72;  two  epochs  of  history  of,  84. 

Representatives,  House  of,  primitive  machinery  of, 
now  overshadowed,  149;  debate  on  election  of  mem- 
bers, 185,  1 86;  basis  of  representation  in,  197,  198, 
206,  207;  and  the  election  of  1800,  248,  249;  pro- 
visions of  i4th  Amendment  concerning  elections, 
371;  qualifications  of  electors  of,  prescribed  by 
states,  372. 

Representatives  of  cities  and  boroughs  first  sum- 
moned to  Montfort's  Parliament,  83. 

Republic  of  U.  S.,  the  lineal  descendant  of  ancient 
German  tribal  federations,  51.  And  see  United 
States. 

Republican  party  (I),  succeeded  Anti-Federalist 
party,  282;  practically  unopposed  in  1816  and  1820, 
282;  in  1828,  split  into  Democrats  and  National 
Republicans  (Whigs),  283;  and  the  quarrel  with 
France  (1793),  304,  305;  and  the  Alien  and  Sedi- 
tion Laws,  305,  306;  its  creed,  404. 

Republican  party  (II),  formed  in  1854  by  foes  of 
Kansas-Nebraska  Bill,  294;  led  by  Lincoln,  294. 

Requisition  system,  the,  in  federal  unions,  20,  112, 
114,  115, 121, 122;  defined,  112;  in  the  Netherlands, 
116;  embodied  in  Articles  of  Confederation,  135. 
And  see  Quota  system. 

Restraint  of  trade,  early  English  law  as  to  contracts 
in,  433,  434- 

Revolution,  American,  effect  of,  18;  origin  of,  107, 382; 
delinquency  of  states  during,  described  by  Hamil- 
ton, 137,  138. 

Revolution  of  1640,  78  seqq. 

Revolution  of  1688,  78  seqq. 

Revolutionary  debt,  problem  of  defraying,  156  seqq. 

Rhode  Island,  a  charter  colony,  97;  preserved  its 
charter  unaltered  down  to  the  Revolution  and  be- 
yond, to  1842,  98;  sends  delegates  to  Stamp  Act 
Congress,  125;  and  to  ist  Continental  Congress,  127. 

Rhode  Island,  alone  among  states  refuses  to  give  Con- 
gress power  to  levy  duties,  144,  156;  her  refusal  the 
death-knell  of  the  Confederation,  157;  a  benefactor 
in  disguise,  158;  ratifies  Constitution,  219  and  n.; 
opposed  to  Va.  and  Ky.  Resolutions,  311;  and  the 
Hartford  Convention,  313,  314;  137,  229,  302. 

Rice,  the,  S7n.,  58,  62n. 

Richard  I,  and  Henry  II's  system  of  taxation,  72,  73. 

Richard  III,  87. 

Richard  the  Fearless,  Duke  of  Normandy,  65  and  n. 

"  Rights  of  Man,"  and  Rousseau's  Contrat  Social  the- 
ory, 322;  331. 

Rives,  William  C.,  Life  and  Times  of  Madison,  228. 

Rockingham  Ministry,  125. 

Roger,  Bishop  of  Salisbury,  68. 

Rolf,  founder  of  the  Duchy  of  Normandy,  64,  65. 

Rome,  ancient,  and  her  relation  to  her  colonies,  377, 
378  and  n. 

Roosevelt,  President  Theodore,  administration  of, 
and  the  Anti-Trust  Act,  439  seqq.;  on  the  distinc- 
tion between  "good"  and  "ibad  "  trusts,  441;  3in. 

Rousseau,  Jean-Jacques,  his  Contrat  Social  and  the 
French  Revolution,  308;  his  theory  now  discredited, 
321;  311,  325,  328. 

Rowland,  Life  of  George  Mason,  561. 

Royal  African  Company,  254. 

Royal  authority.   See  Kingship. 


Royal  colonies  in  America,  Virginia  a  type  of,  95-97. 

Royal  law  and  customary  law,  union  of,  69. 

Ruggles,  Timothy,  125. 

Runnymede,  John  and  the  barons  at,  75;  83,  84. 

Rush,  Richard,  correspondence  with  Canning,  390; 
I33f  393n. 

Russia,  and  the  northwest  boundary  of  U.  S.,  393; 
and  Manchurian  railways,  400. 

Rutledge,  John,  supports  Galloway  plan,  128;  chair- 
man of  Com.  of  Detail,  200,  201,  202;  his  birth,  his- 
tory, and  attainments,  200;  his  amendments  to  Wil- 
son's draft,  203;  submits  report  of  committee,  203; 
34.  44.  126,  174.  181.  i8sn.,  196,  198,  212,  250,  415. 

St.  Alban's,  council  at  (1213),  74. 

St.  Augustine,  283. 

St.  Clair,  Arthur,  Pres.  of  Congress,  159. 

St.  Clement's  manor  (Md.),  last  court-leet  held  at, 
102,  103. 

St.  Edmund,  abbey  of,  secret  meeting  of  barons  at 
(1214),  74. 

St.  Lawrence  River,  the,  123. 

St.  Paul's,  council  at,  74. 

"Saladin  tithe"  of  1188,  first  case  of  taxation  of  per- 
sonal property,  72. 

Salem,  trade  of  Boston  transferred  to,  126. 

Salisbury,  Robert  Cecil,  Marquis  of,  394. 

Sandford,  Mr.,  owner  of  Dred  Scott,  and  defendant  in 
Scott  ».  Sandford,  291,  292. 

Savigny,  Friedrich  Karl  von,  various  works  of,  quoted, 
296,  300,  341.  402,  452. 

Saxons,  52,  53.  And  see  Low-Dutch  tribes. 

Science  of  politics,  birthplace  of,  109;  founded  by 
Aristotle,  no. 

Scotland,  right  of  accused  to  call  witnesses  in,  239. 

Scott,  Dred,  history  of,  290  seqq. 

Scott,  Winfield,  319. 

Scott  v.  Sandford,  constitutionality  of  Missouri  Com- 
promise the  essence  of  the  issue,  292;  and  the  I3th 
Amendment,  293;  conduct  of  those  who  refused  to 
abide  by  decision  was  purely  revolutionary,  329, 
330,  331;  and  Chief  Justice  Taney,  337,  338;  Jus- 
tice Curtis's  dissenting  opinion  in,  349,  350;  deci- 
sion in,  overturned  by  I4th  Amendment,  351.  See 
also  in  Table  of  Cases. 

Scutage,  instituted  by  Henry  II,  72. 

Secession,  doctrine  of,  and  the  Ky.  and  Va.  Resolu- 
tions, 310;  much  more  formidable  than  nullifica- 
tion as  a  means  of  dissolving  the  Union,  321;  not 
appealed  to  in  defense  of  slavery  until  exhaustion  of 
slave  territory,  322,  323,  326;  first  defined  in  print 
in  Connecticut  Courant  (i79S),  323;  right  of,  tacitly 
admitted  by  Jefferson,  323;  Jefferson  and  J.  Quincy 
on  expediency  of,  323;  spirit  of,  in  Mass.,  323,  324; 
Hartford  Convention  on,  324;  views  of  J.  R.  Tucker 
and  Judge  Rawle,  324,  325;  significance  of  early 
declarations,  on  the  subject,  325;  antecedents  of  the 
doctrine,  325,  326;  an  extra-constitutional  remedy, 

329,  330;  attempts  at,  in  1860-61,  338  seqq. 
Secretary  of  State,  148,  227. 

Sedition  Law  (1798),  304;  its  primary  purpose,  305; 
no  prosecutions  under,  305;  attacked  by  Ky.  and 
Va.  Resolutions,  306,  307. 

Self-incrimination,  constitutional  right  to  exemption 
from,  due  to  Revolution  of  1688,  79,  362;  universal 
in  American  law,  79;  provision  of  sth  Amendment 
concerning,  construed  by  Supreme  Court,  236;  ex- 
emption from,  not  one  of  the  fundamental  rights 
of  citizenship  guaranteed  by  i4th  Amendment,  369; 
doctrine  of  Twining  v.  New  jersey  to  this  effect, 
doubted,  369. 

Seminole  War,  284. 

Senate  of  U.  S.,  method  of  election  of,  184,  185;  report 
of  com.  on  compromise  of  basis  of  representation 
in,  198;  last  struggle  over  that  subject,  199;  Presi- 
dent of,  and  the  counting  of  the  electoral  vote,  250. 

Seville  India  House.  See  India  House. 

Seward,  William  H.,  his  "  irrepressible  conflict"'  speech, 

330,  399,  400;  293,  394. 

Shawnees,  and  the  N.  W.  Territory,  255. 


672 


INDEX 


Shays's  Rebellion,  167,  209. 

Sheldon,  Gilbert,  Archbishop  of  Canterbury,  84. 

Sheldonian  compact,  the,  and  taxation  of  the  clergy, 

Sherman,  Roger,  and  Bancroft's  "  Connecticut  plan," 
37,  38;  favors  appointment  of  Executive  by  Con- 
gress, 182;  on  organization  of  Congress,  184,  185, 
186;  opposes  early  amendments,  228;  9,  45,  127, 
179,  196,  226,  250. 

Sherman  Anti-Trust  Act,  and  the  Supreme  Court, 
298;  provisions  of,  432;  how  understood  by  its 
authors,  435,  436;  construed  literally  by  Supreme 
Court,  regardless  of  consequences,  436,  437,  439; 
proceedings  under,  before  1897,  436;  U.  S.  v.  Knight 
Co.,  298,  436,  437;  and  the  "holding  company," 
438;  Northern  Securities  Co.  Case,  298,  439,  440 ; 
ex-President  Roosevelt  on  the  working  of,  441; 
characterized  by  Judge  Lacombe  in  U.  S.  v.  Amer- 
ican Tobacco  Co.,  442;  reviewed  and  discussed  by 
V.  Morawetz,  443-447;  problems  arising  under,  still 
unsolved,  449  seqq. 

Shield-money.  See  Scutage. 

Shire,  the,  an  aggregation  of  hundreds,  51,  57,  60,  99, 
100;  origin  of  present  English  shires,  58;  use  of  the 
word  in  modern  sense,  60;  other  particulars  con- 
cerning, 60;  union  of,  became  kingdom,  100. 

Shire  court,  82,  84. 

Shire  system,  summarized,  62. 

Siberia,  in  1852,  398,  399- 

Siete  Partidas  (codification  of  Spanish  colonial  law), 
380. 

Simon  of  Montfort.  See  Montfort. 

Six  Nations,  the,  renounce  claim  to  land  west  of  the 
Ohio,  255;  121. 

Slave  states  admitted  to  Union  before  1860,  290;  and 
the  doctrine  of  secession,  326  and  n. 

Slave-trade,  in  Virginia  convention,  215;  provision  in 
Constitution  concerning,  254;  life  of,  limited  by 
Constitution,  2.72. 

Slavery,  complications  caused  by,  in  discussing  basis 
of  representation,  195;  in  the  Constitution,  209  and 
n.;  existed  in  every  colony  prior  to  Revolution,  253; 
and  the  compromises  of  the  Constitution,  253,  254, 
255;  doctrine  of  Sommersett's  case,  253;  first  ap- 
pearance in  America,  254;  not  popular  except  in  S.C., 
and  Ga.,  before  invention  of  cotton-gin,  254;  in 
Jefferson's  plan  for  temporary  gov't  of  N.  W.  Ter- 
ritory, 256,  257 ;  prohibited  there  by  amendment  to 
Ordinance  of  1787,  258,  which  was  passed  by  votes 
of  slave  states,  269,  270;  Jefferson's  plan  for  extinc- 
tion of,  270,  271;  conflict  over,  made  inevitable  by 
Ordinance  of  1787,  271;  existed  originally  by  cus- 
tom, not  by  law,  272,  276;  gradual  abolition  of,  in 
Northern  States,  272;  and  the  Louisiana  Purchase, 
274,  276;  not  prohibited  in  Miss.,  278;  battle  for,  to 
be  fought  beyond  the  Mississippi  River,  279;  and 
the  Missouri  Compromise,  280,  281,  287;  admission 
of  Florida  and  Texas  the  last  possible  extension  of 
territorial  limits  of,  283;  in  Mexican  state  of  Texas 
and  Coahuila,  285;  in  Texas  enabling  act,  285;  after 
election  of  Polk  became  the  burning  question,  286; 
Mexican  War  a  victory  for,  286;  extension  of,  in 
territories,  its  only  hope,  288;  the  Kansas-Nebraska 
Bill,  288  seqq.;  and  the  "squatter  sovereignty" 
idea,  288,  289;  and  the  Lincoln- Douglas  debates, 
289;  and  the  Dred  Scott  case,  290  seqq.;  disruptive 
force  of,  293,  294;  an  ally  of  the  provincial  spirit 
embodied  in  Articles  of  Confederation,  299;  and 
the  doctrine  of  secession,  322,  323,  326;  abolition 
of  Seward's  "higher  law,"  330;  precipitated  Civil 
War,  342;  in  territories,  abolished  by  Congress 
(1861),  343,  and  in  District  of  Columbia  (1862), 
344;  and  the  Emancipation  Proclamation,  343;  not 
abolished  thereby,  345,  nor  until  ratification  of  i3th 
Amendment,  345,  346;  must  be  supported  by  local 
police  regulations,  344,  345 ;  abolition  of,  freed  mas- 
ter as  well  as  slave,  346,  347;  legal  effect  of  aboli- 
tion of,  347;  131,  198. 

Slaves,  status  of,  in  free  countries,  253;  at  Jamestown, 
etc.,  254;  how  reckoned  in  apportionment  of  Repre- 


sentatives in  Congress,  254,  255;  number  of,  inU.  S., 
in  1790,  272;  in  Va.,  272;  in  Ky.,  273,  274;  recog- 
nized as  persons  by  Constitution,  272;  three-fiftha 
rule  concerning,  denounced  by  Hartford  Conven- 
tion, 314;  of  owners  engaged  in  the  Civil  War,  freed, 
343 ;  employed  against  government,  claim  of  master 
to  services  of,  declared  forfeit,  343. 

Slaves,  fugitive,  provision  of  Constitution  concern- 
ing, 255;  in  Ordinance  of  1787,  258;  return  of,  pro- 
hibited, 343.  And  see  Fugitive  Slave  Law. 

Sleswick,  51,  S3- 

Smith,  Adam,  Wealth  of  Nations,  170,  379. 

Smith,  Melancthon,  in  N.  Y.  struggle  over  ratifica- 
tion, 217;  257. 

Sohm,  Rudolph,  and  the  German  code  of  1900,  467; 
55,  69n. 

Somersaetas  (Somerset),  58. 

Sommersett's  case,  doctrine  of,  and  the  Dred  Scott 
case,  291,  292. 

South,  the,  at  a  loss  for  new  slave  territory,  288;  and 
the  attempt  to  buy  Cuba,  288;  and  a  protective 
tariff,  316;  and  the  Union,  322,  323;  secession  be- 
comes part  of  policy  of,  326;  blighting  effect  of  slav- 
ery on,  346,  347;  advance  of,  in  production,  since 
the  War,  347. 

South  America,  revolutionary  governments  and  the 
Holy  Alliance,  389;  and  the  U.  S.,  396;  western 
states  of,  in  1852,  398. 

South  Carolina,  colony  of,  represented  in  Stamp  Act 
Congress,  125,  and  in  ist  Continental  Congress,  127. 

South  Carolina,  constitution  of  1778  and  ch.  39  of  the 
Great  Charter,  77,  363;  power  to  annul  statutes, 
assumed  by  Supreme  Court  of,  104;  ratifies  Con- 
stitution, 211,  212;  slavery  regarded  with  favor  in, 
254;  and  the  slave-trade,  272;  and  nullification,  316 
seqq.;  nullifying  ordinance,  passed  by  legislature  of, 
319;  ordinance  of  secession,  338;  137,  173,  199  and 
n.,  229,  273,  302. 

South  Folk  (Suffolk),  58. 

Southern  confederacy,  intrigues  for  a,  in  Va.  (1788), 
an,  212;  crushed  by  S.  C.,  212,  213. 

Southern  States,  slavery  excluded  from  N.  W.  Terri- 
tory by  votes  of ,  269,  270;  attempted  secession  of,  338. 

Southwest,  increase  of  population  in,  before  1830,  286. 

Sovereignty,  idea  of,  among  Teutons,  tribal,  not  ter- 
ritorial, 113;  distinction  between  King  of  France 
and  King  of  the  Franks,  113;  transition  from  tribal 
to  territorial,  113. 

Sovereignty,  territorial,  outcome  of  the  process  of 
feudalization,  113,  114;  basis  of  all  international 
relations,  114,  378. 

Spaight,  Richard  D.,  45,  174,  218,  226,  250,  256. 

Spain,  quarrel  with,  168;  and  the  Louisiana  Purchase, 
274;  and  West  Florida,  277;  cedes  Florida  to  Great 
Britain,  283;  Florida  ceded  back  to,  284;  and  Texas, 
284,  285;  conquests  of,  in  America,  the  beginning 
of  modern  colonization,  379;  colonial  system  of,  379, 
380,  a  commercial  monopoly,  389;  and  the  Panama 
Canal,  396. 

Speaker,  title  of,  first  given  to  Sir  T.  Hungerford,  84. 

Speaker  of  House  of  Representatives,  abnormal  pow- 
ers of,  149;  committees  first  appointed  by,  in  4th 
Congress,  226. 

Speech,  freedom  of.  See  Freedom  of  speech. 

"  Squatter  sovereignty,"  and  the  Kansas-Nebraska 
Bill,  288,  289. 

Staatenbund.   See  Confederated  states. 

Stadtholder,  117. 

Stamp  Act,  the,  passed,  124;  repealed,  125. 

Stamp  Act  Congress,  declaration  of  rights  and  griev- 
ances of  the  colonies,  125,  495-496;  petitions  to  the 
King,  the  Lords,  and  the  Commons,  125. 

Star  Chamber,  the,  origin  and  history  of,  87,  88  and  n.; 
78,  79,  237,  360,  361,  362. 

State,  the,  ancient  and  modern  conceptions  of,  112, 
113,  378;  growth  of  power  of,  in  England  and 
France,  403;  a  monster  to  be  fettered  by  constitu- 
tions, 403;  dread  of  power  of,  nurtured  by  French 
Revolution,  462;  old  dread  of,  discarded,  464,  465. 

State,  Department  of,  227. 


State  constitutions  in  U.  S.,  epitomized  the  reformed 
English  Constitution  as  defined  by  Blackstone,  and 
transmitted  its  essence  to  the  Constitution  of  the 
U.  S.,  79,  80. 

State  courts,  supremacy  of  U.  S.  Supreme  Court  over, 
declared  by  Chief  Justice  Marshall,  153,  154. 

State  law,  need  of  a  typical  code  of,  471,  472. 

State  sovereignty,  extreme  view  of,  culminated  in 
dogma  of  nullification,  281, 317 ;  modification  of  that 
view,  301;  asserted  by  Ky.  Resolutions,  306,  307; 
Calhoun  on,  318. 

States  of  the  U.  S.,  English  Constitution  the  political 
substructure  of,  18,  19,  61;  must  be  studied  before 
studying  the  Union,  18;  power  to  annul  statutes 
assumed  by  highest  courts  of,  104,  457;  had  entire 
control  of  purse  and  sword  under  Articles  of  Con- 
federation, 136;  also  power  to  regulate  commerce, 
137,  and  power  of  taxation,  139;  P.  Webster  on  the 
folly  of  that  system,  144,  which  was  deep-rooted  in 
public  favor,  145;  "delinquency"  of,  during  the 
Revolution,  137,  138;  controversies  between,  re- 
ferred to  Congress  under  Articles  of  Confederation, 
152;  P.  Webster  on  reserved  rights  of,  154,  IS5;  all 
except  R.  I.  agree  to  amend  Articles  of  Confedera- 
tion by  authorizing  Congress  to  raise  revenue  by 
laying  duties,  156;  commercial  conflicts  among,  166; 
no  common  sentiment  of  union  in,  168,  299;  pro- 
vincial spirit  of,  168;  debate  on  use  of  force  against, 
by  Federal  Gov't,  180;  equality  of,  recognized  in 
provision  concerning  U.  S.  Senators,  184,  185; 
larger  states  prevail  in  Convention  in  matter  of 
Representatives,  185,  186;  unjust  action  of  larger, 
on  organization  of  Congress,  185,  186,  189,  and  in 
resolutions  of  Committee  of  the  Whole,  189,  190; 
conflict  between  larger  and  smaller  as  to  representa- 
tion in  Senate,  194  seqq.;  triumph  of  smaller  states, 
199;  constitutions  of,  frequently  prefaced  by  bills 
of  rights,  222,  243,  244;  first  12  Amendments  dic- 
tated by  their  jealousy,  222,  and  "coined"  from 
their  bills  of  rights,  223;  demand  Amendments  of 
Constitution  to  guard  their  rights,  237;  reserved 
powers  of,  245,  246;  certain  suits  against,  prohibited 
by  nth  Amendment,  246;  Ordinance  of  1787  a  com- 
pact between,  258;  and  the  N.  W.  Territory,  258, 
259;  right  to  regulate  suffrage  reserved  by,  267; 
formed  out  of  foreign  territory,  admission  of,  273; 
balance  between  slave  and  free  destroyed  by  Mis- 
souri Compromise,  281.  (See  State  sovereignty.) 
Love  of  local  self-gov't  strong  in,  at  outset,  299; 
power  of  U.  S.  Supreme  Court  to  annul  laws  of, 
332  seqq.;  status  of  seceding,  after  the  War,  deter- 
mined by  Texas  v.  White,  339,  340;  right  of  suffrage 
derived  from,  exclusively,  372,  373;  and  appoint- 
ment of  presidential  electors,  372;  and  qualifica- 
tions of  electors  of  Representatives,  372;  isth 
Amendment  contains  sole  limitation  on  suffrage- 
control  of,  373;  power  of,  the  bete  noire  of  the  ist 
Republican  party,  404,  and  now  hailed  as  deliverer, 
405;  dependence  of  individuals  on,  405  seqq.;  mul- 
tiplication of  functions  of,  407 ;  and  organized  labor, 
407;  and  foreign  commerce,  417,  418;  have  no  con- 
trol of  interstate  commerce,  423,  424;  control  of, 
over  intrastate  commerce,  424,  425;  police  power 
of,  and  regulation  of  interstate  commerce,  425,  426; 
inspection  laws  of,  426;  power  of,  to  regulate  liquor 
traffic,  427,  428;  laws  against  railroad  pools  and 
rate-discrimination,  433. 

States,  new,  provisions  for  admission  of,  271,  272; 
Hartford  Convention  recommends  change  in  those 
provisions,  314. 

States-General  of  France,  88  and  n. 

States-General  of  the  Netherlands,  116,  117. 

Statute  law,  forty-seven  sources  of,  in  U.  S.,  469;  im- 
mense mass  of,  469. 

Statutes,  power  to  annul,  assumed  by  highest  courts 
of  states,  104,  105;  not  expressly  conferred  by  any 
state  constitution,  104;  an  American  invention,  105; 
assumed  by  U.  S.  Supreme  Court,  105. 

Steam,  revolution  wrought  by  application  of,  to  loco- 
motion, 300;  effect  of,  on  commerce,  337. 


INDEX  673 

Steamboats,  300. 

Stephen  (King),  England  under  his  reign,  68;  recog- 
nizes Henry  Plantagenet  as  his  heir,  68. 

Stephen,  Sir  James  F.,  History  of  the  Criminal  Law  of 
England,  238,  239,  362. 

Stillman,  Samuel,  210. 

Story,  Joseph,  Commentary  on  the  Constitution,  6,  7, 
244,  245;  fails  to  reveal  the  origin  of  the  underlying 
theory  of  the  Constitution,  7;  on  9th  Amendment, 
244,  245;  and  the  secession  spirit  in  Mass.,  323,  324. 

Stout,  Thomas,  i6sn. 

Straus,  Oscar  S.,  3 in. 

Strong,  Caleb,  199,  226. 

Stuarts,  the,  and  the  Rebellion  (1640),  90. 

Stubbs,  William,  Constitutional  History  of  England, 
in.,  15,  56,  57n.,  6in.,  70,  113,  363;  Select  Charters, 
in.,  71;  Roger  of  Hoveden,  S9n. 

Style,  Committee  of.  See  Committee  of  Style. 

Suez  Canal,  398. 

Suffrage,  and  representation  in  the  lower  House,  185, 
186;  right  to  regulate,  reserved  by  states,  267,  372, 
373;  restricted,  provided  by  Ordinance  of  1787,  267 ; 
right  of,  denied  to  ex-slaves  after  I4th  Amendment, 
37i. 

Sullivan,  John,  127,  128. 

Sumner,  William  G.,  The  Financier  and  Finances  of  the 
Revolution,  161  and  n. 

Sumter,  Thomas,  opposes  ratification,  212. 

Supreme  Court  of  U.  S.,  first  suggested  by  P.  Webster, 
153;  created  by  Judiciary  Act  of  1789,  226;  first 
meeting  in  Washington  (1801),  221;  supremacy  of, 
over  state  courts  asserted  by  Marshall,  153,  154; 
assumes  power  to  annul  statutes  for  unconstitu- 
tionally, 105,  331;  this  power  not  conferred  by 
Constitution,  331;  Marbury  ».  Madison  and 
Fletcher  ».  Peck,  331,  332;  the  supreme  ultimate 
power  in  constitutional  matters,  298,  299;  construes 
"due  process  of  law"  in  sth  and  I4th  Amendments, 
77,  78,  80,  81,  82,  367;  its  main  business  to  construe 
and  enforce  ch.  39  of  the  Great  Charter,  as  reem- 
bodied  in  those  amendments,  78;  its  construction 
thereof  criticized,  78,  365;  rule  of  judicial  inclusion 
and  exclusion,  367,  450,  452;  and  the  constitutional 
right  of  exemption  from  compulsory  self-incrimin- 
ation,  79;  inclined  to  narrow  its  own  jurisdiction, 
368,  of  whose  scope  it  is  the  sole  judge,  329,  33O; 
and  the  ist  Amendment,  230  and  n.,  231;  and  the 
2d  Amendment,  233;  its  decision  in  Dred  Scott  case 
in  perfect  accord  with  the  law  as  defined  in  the  com- 
promises of  the  Constitution,  292,  293  and  notes; 
had  no  power  to  abolish  slavery,  293n.;  its  pow- 
ers in  eclipse  at  first,  309,  332;  abandoned  by  Jay, 
309,  332;  attacked  by  Jefferson,  309,  and  rehabili- 
tated by  Marshall,  310,  who  was  its  mouthpiece  for 
34  years,  332;  scope  of  Marshall's  work  as  Chief 
Justice,  332;  and  the  Civil  War,  338  seqq.,  342;  the 
ultimate  guardian  of  new  national  citizenship,  370, 
371;  and  the  isth  Amendment,  373  seqq.;  and  the 
remodeled  constitution  of  Miss.,  374,  375;  its  func- 
tion in  the  growth  of  the  Constitution,  408;  still  has 
a  difficult  problem  to  solve  as  to  agreements  in 
restraint  of  trade,  449  seqq. 

Sussex,  58. 

Swayne,  Justice  Noah  H.,  354. 

Swiss  Cantons,  confederation  of,  109,  115. 

Swiss  Constitution,  and  the  Executive,  148,  149; 
wherein  it  resembles  the  Constitution  of  the  U.  S., 
149. 

Switzerland,  20. 

Tacitus,  Cornelius,  53  seqq. 

Taft,  President  William  H.,  on  danger  of  literal  con- 
struction of  Anti-Trust  Act,  441 ;  proposes  amend- 
ments, 441,  442. 

Taine,  Hippolyte  A.,  History  of  English  Literature,  25, 
297. 

Tallmadge,  James,  280. 

Taney,  Chief  Justice  Roger  B.,  his  first  opinion,  336, 
337;  and  the  scope  of  admiralty  jurisdiction,  337; 
and  the  Dred  Scott  case,  259,  337,  338;  opinion  in 


674 


INDEX 


Martin  v,  Waddell,  18,  19,  380;  in  Fleming  r.  Page, 

386,  387;  in  License  Cases,  417,  418. 
Tariff  of  1816,  316. 
Tariff  of  1824,  316. 
Tariff  of  1828,  marks  an  era  in  history  of  economic 

legislation,  316;  declared  null  by  legislature  of  S.  C., 

Tariff  of  1832,  declared  null  by  legislature  of  S.  C., 
319. 

Tariff  of  1833,  a  compromise  measure,  followed  by 
repeal  of  nullifying  ordinance,  320. 

Tariff  of  1842,  321. 

Tariff  on  imports,  Congress  should  have  power  to 
levy,  144,  145. 

Tariff  question,  became  a  political  one  in  1824,  316; 
sectional  division  on,  316. 

Tariffs,  state,  of  1785,  166. 

Taxation,  power  of,  never  before  bestowed  on  a  fed- 
eral government,  4,  20,  139,  458,  nor  conceived 
of  as  an  attribute  of  a  federal  system,  21;  first  sug- 
gested by  P.  Webster,  8,  9,  29,  143,  144,  145;  the 
cornerstone  of  the  system  of  1787,  21;  defended  by 
P.  Webster,  47 ;  lack  of  provision  for,  in  Articles  of 
Confederation,  a  fatal  defect,  136,  137,  139,  141; 
deep-rooted  prejudice  in  favor  of  leaving  it  with 
the  states,  145 ;  claimed  by  Parliament  as  to  colo- 
nies, 381,  382. 

Until  1188,  fell  entirely  on  land,  72;  personal 
property  first  made  subject  to,  by  Henry  II,  72; 
and  representation,  correlative  terms,  72;  Henry 
II's  system  of,  as  applied  by  Richard  I,  72,  73;  right 
of,  without  authority  of  nation,  asserted  by  Ed- 
ward I,  83;  abandoned  in  the  Confirmatio  car  tar  um, 
83,  84;  and  the  clergy,  84;  in  the  Achaian  League, 
111;  in  the  United  Netherlands,  116;  purpose  of 
British  Government  to  impose  on  colonies  without 
their  consent,  first  indicated  in  1754,  121,  123;  sole 
power  of  originating  given  to  lower  branch  of  Con- 
gress, i98n. 

Taxes,  direct,  old  three-fifths  rule  concerning,  abol- 
ished by  i4th  Amendment,  371.  And  see  Direct 
taxation. 

Taylor,  John,  of  Caroline,  323. 

Taylor,  President  Zachary,  and  the  admission  of 
California,  287. 

Telegraph,  the,  300. 

Telegraph  companies,  and  control  of,  419;  and  the  Act 
of  1910,  429. 

Telephone  companies,  and  the  Act  of  1910,  429. 

Temple,  Sir  William,  Observations,  etc.,  117. 

Tennessee,  admission  of,  273;  ordinance  of  secession, 
338. 

Territorial  courts,  not  courts  of  U.  S.,  265,  266. 

Territorial  government,  oligarchical  form  of,  384;  in 
Louisiana,  384;  in  Florida,  385;  in  Utah  and  New 
Mexico,  386. 

Territorial  judiciary,  tenure  of,  385. 

Territorial  lands.  See  Public  lands. 

Territorial  ports,  and  the  Louisiana  Purchase,  384; 
387. 

Territories  of  U.  S.,  governed  as  all  other  colonies  in 
the  world's  history  have  been,  266;  constitutional 
guaranties  do  not  apply  to,  387;  stand  in  same  rela- 
tion to  general  gov't  that  counties  do  to  states,  387 ; 
Congress  supreme  over,  387,  388;  not  a  part  of  the 
U.  S.,  under  the  Constitution,  389.  And  see  Colonial 
system  of  the  U.  S. 

Territory,  a  new  political  institution  created  by  the 
Ordinance  of  1787,  382. 

Territory  acquired  by  discovery,  exclusive  right  to 
grant,  a  part  of  royal  prerogative,  91. 

Test  Act,  230. 

Teutonic  democracy,  the  source  of  the  Republic  of  the 
U.  S.,  51. 

Teutonic  invaders  of  Britain,  51,  62. 

Teutonic  leagues,  characteristic  features  of,  112  seqq. 

Teutonic  political  institutions,  described  by  Caesar 
and  Tacitus,  53  seqq.;  how  transferred  to  con- 
quered territory,  56. 

Teutonic  settlements.  See  Low-Dutch  tribes. 


Teutonic  state.  See  Civitas. 

Teutonic  substructure  and  Norman  superstructure, 
fusion  of,  69  seqq. 

Teutonic  system,  the  substructure  of  the  government 
of  England  and  of  American  states,  19. 

Texas,  history  of,  284,  285;  admission  of,  based  on 
Vermont  precedent,  273;  annexation  of,  led  to 
Mexican  War,  286,  393;  ordinance  of  secession,  338, 

Texas  and  Coahuila,  a  Mexican  state,  285;  slavery 
not  recognized  in  constitution  of,  but  imported  into, 
285;  declares  its  independence  of  Mexico,  285;  inde- 
pendence of,  recognized  by  U.  S.  and  other  powers, 
285;  annexation  of,  285. 

Thegns,  61,  82. 

Thomas,  Jesse  B.,  and  the  Missouri  Compromise,  281. 

Thompson,  Charles,  Sec.  of  Continental  Congress,  268, 

Three  estates,  rise  of  the,  73. 

Thucydides,  the  Greece  of,  no. 

Thurston,  Lorrin  A.,  399n. 

Tilden,  Samuel  J.,  and  the  election  of  1876,  249,  250. 

Tocqueville,  Alexis  de,  De  la  Democratic  en  Amerique, 
2,  4,  9,  10,  18,  21  and  n.,  23,  30  and  n.,  42,  61,  97, 
100,  458;  finds  the  Constitution  based  on  "a  wholly 
novel  theory,"  but  seeks  not  its  origin  or  author- 
ship, 2. 

Toulouse,  proposed  expedition  against,  71. 

Town-meeting,  its  prototypes,  102;  54,  55. 

Townships,  union  of,  in  England,  became  hundred,  99, 
and  in  America,  county,  100;  different  aspects  of, 
in  different  colonies,  101  seqq.;  under  feudal  system, 
10 1 ;  became  parishes  in  territorial  organization  of 
the  church,  101,  102;  in  New  England,  102;  in  Md. 
and  N.  Y.,  102,  103;  in  Va.,  103;  51,  55.  And  see 
Mark. 

Trading-charters,  90. 

Travel  in  U.  S.,  revolution  in,  caused  by  use  of  steam, 
300. 

Treason,  constructive,  and  the  trial  of  Burr,  251,  252. 

Treasury  Department,  227. 

Treaty  of  April  30,  1803  (Louisiana  Purchase),  275, 

Trenton,  Congress  at,  159  and  n. 

Trial  by  jury,  not  guaranteed  by  the  Great  Charter, 
75  and  n.  And  see  Jury  trials. 

Tronchet,  M.,  and  the  Code  Napoleon,  466,  467. 

Trusts  and  monopolies,  Supreme  Court  omnipotent 
to  decide  fate  of,  298. 

Tucker,  J.  Randolph,  The  Constitution,  259;  as  editor 
of  Blackstone,  on  right  of  secession,  324. 

Tucker,  Josiah,  Dean  of  Gloucester,  169,  299,  300. 

Tun  (township),  101. 

Tun-moot,  57,  60,  101,  102. 

Tupper,  Benjamin,  268. 

Turgot,  Anne-R.-J.,  Baron  de  1'Aulue,  quoted,  iO7n.t 
I26n. 

Turner,  Sharon,  History  of  the  Anglo-Saxons,  in. 

Tyler,  John,  opposes  ratification,  213,  215;  167. 

Unification  of  laws,  the  best  mode  of  strengthening  our 
national  law,  473  seqq. 

Uniform  Bills  of  Lading  Act,  470. 

Uniform  Negotiable  Instruments  Act,  470. 

Uniform  Stock  Transfer  Act,  470. 

Uniform  Warehouse  Receipts  Act,  470. 

Uniformity  of  laws,  result  of  recent  efforts  to  secure, 
470,  471. 

Union,  first  step  on  the  way  to  (1765),  124;  dim  sense 
of,  at  outset  of  gov't,  299;  slavery  a  potent  influ- 
ence in  retarding,  299;  Penn's  plan  of,  483;  Coxe's 
and  Franklin's  plan  of,  484-494. 

Union,  the,  defined  by  Chief  Justice  Chase  in  Texas 
v.  White,  340. 

United  Colonies  of  New  England,  their  articles  of 
confederation,  119  and  n.,  477  seqq. 

United  States,  foundations  of,  laid,  89;  how  built  up, 
100;  founders  of,  and  their  acquaintance  with  earlier 
federal  governments,  in,  112;  population  of,  in 
1790,  1900,  and  1910,  299,  398,  453-456;  area  of,  in 
1790,  1900,  and  1910,  299,  398,  453-456;  rate  of 
increase  in  population,  457 ;  inferiority  of,  at  outset, 
303;  the  neutrality  proclamation  of  1793,  304;  rela- 


INDEX 


675 


tions  with  France,  under  John  Adams,  304  seqq.; 
how  forced  into  assertion  of  Monroe  Doctrine,  389, 
390;  relations  with  the  Orient,  396,  397;  expansion 
of,  398, 453 ;  already  involved  in  Oriental  problems, 
400,  401;  the  Manchurian  railway  question,  400; 
importance  of  firm  alliance  with  England,  401;  ter- 
ritorial acquisitions,  454;  outcome  of  its  growth  a 
new  type  of  state  and  of  federal  gov't,  459;  a  gov't 
without  citizens  until  I4th  Amendment,  461. 

United  States  v.  Knight  Co.,  decision  of,  paralyzed 
Anti-Trust  Act,  298. 

United  States  ».  Northern  Securities  Co.,  decision  of, 
gave  full  effect  to  Anti-Trust  Act,  298. 

United  States  Steel  Corporation,  438. 

Utah  Territory,  Mormonism  in,  294;  287,  386. 

Van  Buren,  President  Martin,  opposes  annexation  of 
Texas,  285. 

Venezuela,  United  States  of,  U.  S.  type  of  federal 
union  reproduced  in,  459;  dispute  with  England 
over  boundary,  394,  395. 

Vergennes,  Charles  Gravier,  Comte  de,  208. 

Vermont,  admission  of,  271,  272,  273;  constitution  of 
1777-79  and  ch.  39  of  the  Great  Charter,  77,  363; 
riots  in,  167;  never  any  slaves  in,  272;  formed  of 
territory  claimed  by  N.  Y.  and  N.  H.,  273;  grounds 
of  southern  opposition  to  her  admission,  273;  op- 
posed to  Ky.  and  Va.  Resolutions,  311;  and  the 
Hartford  Convention,  313,  314;  229. 

Vertot  d'Auboeuf,  Abb6  R.-A.  de,  6. 

Vestry,  the,  101,  102,  103. 

Veto  power,  182,  202. 

Vice-President,  method  of  electing,  204,  205;  changed 
by  1 2th  Amendment,  247  seqq. 

Vicus.  See  Village. 

Vienna,  Congress  of  (1815),  115. 

Village,  the,  54. 

Vining,  John,  opposed  early  amendments  to  Consti- 
tution, 228. 

Virginia,  colony  of,  a  typical  royal  colony,  95~97;  evo- 
lution of,  from  a  servile  corporation  to  a  self-govern- 
ing state,  95-97;  resident  council  of,  95,  96;  first 
representative  assembly  in  America  met  at  James- 
town (1619),  96;  its  external  organization  and  the 
old  English  Constitution,  96;  survived  as  royal  col- 
ony after  annulment  9f  London  Company's  charter, 
96;  parish  system  retained  in,  103 ;  suggests  first  Con- 
tinental Congress,  125,  and  is  represented  in  it,  126; 
House  of  Burgesses  of,  and  Boston  Port  Bill,  126; 
dissolved  by  Lord  Dunmore,  the  House  reassembles 
and  issues  call  for  general  congress,  126;  61  and  n., 
120. 

Virginia,  issues  call  for  convention  of  states  (1786),  25; 
constitution  of  1776  and  ch.  39  of  the  Great  Char- 
ter, 76,  77,  363;  power  to  annul  statutes  assumed 
by  her  Court  of  Appeals,  104;  her  claim  to  western 
lands,  134;  Bill  of  Rights  of  (1776),  first  formulated 
the  dogma  of  division  of  powers,  147,  361,  362,  510- 
512;  legislature  of,  favors  joint  action  of  states  to 
regulate  commerce,  167;  and  the  unjust  treatment 
of  the  smaller  states,  190;  opposition  to  Constitu- 
tion in,  208;  anti-Federalists  in,  intrigue  for  South- 
ern confederacy,  211;  struggle  over  ratification,  213- 
216;  finally  ratifies,  216;  slavery  forced  upon,  254; 
anti-slavery  feeling  in,  254;  and  the  N.  W.  Terri- 
tory, 255;  significance  of  her  assent  to  Ordinance  of 
1787,  258,  259,  269,  270;  compact  with  Ky.,  273; 
her  land  laws  perpetuated  in  Ky.,  273;  and  the 
excise  tax,  303;  ordinance  of  secession,  338;  and  the 
Emancipation  Proclamation,  344,  345;  137,  173, 
195,  199,  229,  256,  271,  273. 

Virginia  Court  of  Appeals,  104,  154. 

"  Virginia  plan,"  drawn  before  the  Convention  met, 
II  seqq.;  exact  text  of,  in  doubt,  34;  presented  to 
Convention  by  Edmund  Randolph,  174-176; 
though  general  and  abstract,  it  embodied  "  the 
great  invention,"  175,  176;  referred  to  committee, 
176;  provision  in,  for  national  Executive,  180,  181, 
and  concerning  a  judiciary,  182,  183;  afforded  no 
assistance  to  Com.  of  Detail,  201;  supposed  text  of. 


55O-552;  discussion  as  to  authorship  of,  552-561. 
And  see  Madison,  James. 

Virginia  Resolutions  (1798),  ostensibly  drawn  by 
Madison,  307;  Jefferson  the  real  author  of,  308,  309; 
sent  to  all  Representatives  in  Congress,  and  to  other 
states,  311;  only  replies  to,  were  antagonistic,  311; 
reflected  in  report  of  Hartford  Convention,  314; 
Hayne's  defense  .of  nullification  based  on,  317;  bale- 
ful influence  of,  down  to  1861,  322;  328,  336,  340. 

Virginia  and  Maryland,  joint  commissioners  of,  165, 
1 66. 

Von  Hoist,  Hermann  E.,  Constitutional  and  Political 
History  of  the  U.  S.,  2,  3,  n,  22;  ridicules  "  inspira- 
tion theory,"  but  seeks  not  the  origin  or  author  of 
"the  great  discovery,"  3. 

Voting,  manner  of,  in  Congress,  prescribed  by  Arti- 
cles of  Confederation,  132  seqq. 

Wadsworth,  James,  209. 

Waite,  Chief  Justice  Morrison  R.,  opinion  in  First 
Nat.  Bk.  v.  Yankton,  387,  388;  in  Stone  v.  Miss., 
412;  374. 

Wallingford,  Treaty  of,  68,  69  and  n. 

War,  declaration  of,  Hartford  Convention  recom- 
mends change  concerning,  315. 

War  Department,  227. 

War,  Minister  of.  See  Minister  of  War. 

War  of  1812,  284,  312,  313. 

War  power,  and  the  Emancipation  Proclamation,  344. 

Washington,  Booker  T.,  376. 

Washington,  George,  records  of  Federal  Convention 
committed  to,  5,  32;  and  the  calling  of  the  Federal 
Convention,  165  and  n.;  and  the  power  to  regulate 
commerce,  166  and  n.;  elected  president  of  Conven- 
tion, 174;  Madison's  letter  to,  175;  his  only  speech 
in  the  Convention,  206,  207 ;  his  letter  as  president 
laid  before  the  Convention,  207;  converts  Edmund 
Randolph,  213;  P.  Webster's  relation  to,  219; 
elected  first  President  of  U.  S.,  220;  his  influence 
assured  ratification  of  the  Constitution,  302,  303; 
quells  the  whiskey  insurrection,  303;  and  foreign 
affairs,  303,  304;  neutrality  proclamation  of  1793, 
304;  the  king  of  the  Federalists,  304;  his  farewell 
address  quoted,  473;  21,  39,  4in.,  43,  125,  126,  157 
and  n.,  171,  173,  174,  178,  211,  250,  256,  269,  312. 

Washington,  D.  C.,  seat  of  government  fixed  at,  200. 

Washington  Territory,  in  1852,  398. 

Wayne,  Justice  James  M.,  259. 

Webster,  Daniel,  and  the  proper  use  of  the  mails,  231 ; 
on  the  Ordinance  of  1787,  269;  on  nullification  and 
the  Hartford  Convention,  315,  316;  abandons  free 
trade  (1824),  316;  his  debate  with  Hayne,  316-318; 
his  reply  to  Calhoun's  nullification  speech,  328;  a 
disciple  of  John  Marshall,  336;  ridicules  proposed 
extension  of  Constitution  to  territories,  386;  39n.t 
318,  319,  329. 

Webster,  Ebenezer,  father  of  Daniel,  opposed  to  rati- 
fication of  Constitution,  212. 

Webster,  Noah,  39n. 

Webster,  Pelatiah,  his  birth  and  history,  27;  his 
Essays  on  Free  Trade  and  Finance,  Essay  on  Credit, 
etc.,  27,  28;  his  Political  Essays  the  leading  author- 
ity on  the  finances  of  the  period,  28;  his  petition  for 
the  deranged  officers,  28  and  n. ;  his  purpose,  to  con- 
struct an  entirely  new  federal  fabric,  with  power  of 
taxation,  28,  29;  the  father  of  the  existing  Constitu- 
tion, 31,  468;  on  the  circumstances  under  which  his 
Dissertation  was  written,  38,  39;  his  self -sacrificing 
patriotism,  46;  records  of  the  Convention  a  sealed 
book  to  him,  46,  47 ;  was  foremost  to  defend  the  new 
Constitution,  46,  47  and  n.,  48,  6o3n.;  text  of  his 
paper  in  that  behalf  (Oct.,  1787),  603-609;  replies  to 
"  Brutus,"  48,  49;  republishes  the  Dissertation,  with 
notes  (1791),  49,  50;  his  appeal  to  posterity,  50;  in 
1781,  proposed  entire  change  of  system  of  gov't, 
140,  141 ;  his  exposure  of  the  weakness  of  the  Arti- 
cles of  Confederation,  141-143;  his  "epoch-making 
invention"  of  Feb.  16,  1783,  343  seqq.;  his  inven- 
tion synonymous  with  failure  of  the  quota  system, 
155  seqq.;  his  pamphlet,  where  printed,  is8n.;  and 


3C 

Wil, 


676  INDEX 

Hamilton,  Prof.  Sumner  on,  161;  how  he  forced  the 
calling  of  the  Convention,  161,  162;  his  suggestion 
of  a  tripartite  federal  gov't  adopted  as  basis  of 
report  of  Committee  of  the  Whole,  i?9;  his  relation 
to  Washington,  219;  blazed  the  way  for  Marshall's 
judicial  work,  334!  250,  468. 

His  Dissertation  on  the  Political  Union  and  Con- 
stitution of  the  Thirteen  United  States  of  North  Amer- 
ica, published  Feb.  16,  1783,  7,  8,  12,  143  seqq.; 
G.  T.  Curtis's  ignorance  of,  7,  8;  Geo.  Bancroft  con- 
cerning, 8;  contains  first  suggestion  in  history  of  a 
federal  gov't  with  power  to  tax,  8,  9;  promulgates 
the  "great  discovery"  embodied  in  the  three 
"plans,"  14,  is,  24;  republished  in  1787,  14;  its  in- 
fluence does  not  extend  beyond  the  work  of  the 
Convention,  16;  republication  of,  by  Congress,  and 
its  effect,  17;  contains  the  entire  plan  of  the  Con- 
stitution, worked  out  four  years  beforehand,  24; 
as  authentic  as  the  Constitution  itself,  24;  when 
reprinted  in  1899,  was  entirely  unknown,  24;  credit 
given  to,  by  Madison,  27  and  n.;  analyzed,  29  seqq.; 
its  four  elements,  29;  on  delegated  powers,  30;  on 
the  commercial  aspect  of  affairs,  30,  31;  spread 
broadcast  in  Phila.,  in  Feb.,  1783,  40;  must  have 
been  familiar  to  Madison,  Hamilton,  and  Pinckney, 
40;  quoted,  46;  effect  of,  on  subsequent  proceedings 
of  Congress,  41;  declares  federal  power  of  taxation 
the  first  necessity,  143,  144,  I4S;  on  import  duties, 
144,  145;  first  proposes  division  of  a  federal  state 
into  departments,  147;  plan  proposed  for  Execu- 
tive Department,  148;  urges  close  connection  be- 
tween Legislative  and  Executive  Departments,  149; 
recommends  bicameral  congress,  150,  151;  how 
members  should  be  chosen,  151;  denounces  three- 
year  limitation  of  service,  1 5 1 ;  911  powers  of  Congress, 
151,  152;  on  absence  of  provision  for  federal  judi- 
ciary in  Articles  of  Confederation,  152;  proposes 
creation  of  Supreme  and  inferior  courts,  153,  182; 
and  the  reserved  rights  of  the  states,  154,  155;  his 
statement  thereon  more  ample  than  loth  Amend- 
ment, 155;  suggestion  of,  concerning  the  supreme 
executive  power,  180;  on  the  relation  between  the 
federal  power  and  the  states,  224;  on  express  and 
implied  powers,  245;  full  text  of,  527-546;  notes  to 
second  edition  of,  547-549. 

Wellington,  Arthur  Wellesley,  Duke  of,  on  martial 
law,  344,  345- 

Welsh  population,  massed  in  territory  unconquered 
by  Teutonic  tribes,  57. 

Wessex,  shire  system  attained  its  earliest  and  purest 
development  in,  58;  supremacy  of,  finally  estab- 
lished (825),  59. 

West  Florida,  277. 

West  Indies,  commerce  of,  396. 

West  Saxon.  See  Wessex. 

Westminster  became  the  seat  of  government  under 
Edward  I,  84. 

Westphalia,  53;  Treaty  of,  115,  117. 

Whig  party,  name  finally  assumed  by  opponents  of 
Jackson,  283;  its  policies  and  supporters,  283;  de- 
stroyed by  election  of  1852,  287,  288,  294. 

Whigs,  the  only  party  in  U.  S.,  in  1783,  281;  in  Free- 
Soil  party,  287;  convention  of,  at  Baltimore,  287. 

White,  Chief  Justice  Edward  D.,  dissenting  opinion 
in  Northern  Securities  case,  440. 


Whitney,  Eli,  and  the  cotton-gin,  254. 

Wilkes,  John,  and  general  warrants,  234 

William  I  (the  Conqueror),  his  victory  at  Hastings, 
66;  under  his  rule  a  real  national  unity  attained, 
66  seqq.;  a  national  king,  66;  retains  the  laws  and 
institutions  of  Eadward,  66,  67 ;  all  landholders  his 
tenants,  67 ;  his  system  of  a  central  government  re- 
stored by  treaty  of  Wallingford,  68. 

William  II  (Rufus),  crushes  Norman  revolt  with  aid 
of  English  subjects,  67. 

William  V  (of  Orange),  the  last  Stadtholder,  117. 

William  and  Mary  College,  80. 

Williamson,  Hugh,  saves  the  Convention  from  disso- 
lution, 45;  174,  226. 

Wilmot,  David,  introduces  his  "Proviso"  (1846), 
287. 

Wilmot  Proviso,  as  to  slavery  in  newly  acquired  ter- 
ritory, 287;  failed  to  pass,  287;  created  the  Free- 
Soil  party,  287. 

Wilsaetas  (Wilts),  58. 

Wilson,  James,  on  the  organization  of  the  executive 
power,  181;  favors  popular  election  of  President, 
181;  and  the  judiciary,  183,  184;  on  organization  of 
Congress,  184;  on  New  Jersey  plan,  191;  on  basis 
of  representation,  195,  196,  197;  on  Committee  of 
Detail,  200,  201;  his  recently  discovered  drafts  of 
the  Constitution,  202,  203;  44,  132,  174,  194,  250, 
303. 
ilson,  Woodrow,  on  the  Colossus  of  business,  464. 

Winsor,  Justin,  Narrative  and  Critical  History  of 
America,  iosn. 

Winthrop,  John,  402. 

Wirt,  William,  4i6n. 

Wisconsin  Territory,  history  of,  286. 

Wisconsin,  admission  of,  286;  Dred  Scott  in,  291,  292; 
134,  256,  382. 

Witan,  the.  See  Witenagemote. 

Witenagemote  (meeting  of  the  wise),  and  the  kingship, 
62;  constitution  of,  63;  the  national  assembly  of 
the  heptarchic  states,  63 ;  William  I  chosen  king  by, 
66;  Henry  I  chosen  king  by,  67;  clergy  in  member- 
ship of,  under  Henry  I,  68;  becomes  the  Magnum 
Concilium,  68. 

Witherspoon,  John,  132,  133,  208. 

Witnesses,  right  of  accused  to  be  confronted  with,  238 
seqq.;  right  of  accused  to  call,  in  various  jurisdic- 
tions, 239. 

Woden,  fabled  descent  of  kings  of  Britain  from,  6a 
and  n. 

Wolsey,  Thomas,  Cardinal,  88. 

Wyandotte  Constitution  (Kansas),  295. 

Wyandottes,  and  the  N.  W.  Territory,  255. 

Wythe,  George,  opinion  of,  in  Commonwealth  v.  Caton 
(Va.),  104;  43,  44,  80,  105,  174,  250,  271. 

"  X.  Y.  Z."  dispatches,  304. 

Yale  University,  and  P.  Webster,  17. 

Yates,  Robert,  and  P.  Webster,  48,  49;  his  notes  con- 
cerning Pinckney  plan,  176;  throws  over  Hamilton 
plan,  200;  14,  15,  36,  174,  198,  216,  217,  250. 

York,  House  of,  accession  of,  87. 

York,  Pa.,  Congress  at,  i59n. 

Zeno,  Emperor,  edict  of,  against  monopolies,  433. 


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